Hale v. . SmithHale v. . Smith
- Reporters:
- ,
- Before:
- Rapallo
This case is so fully considered in the opinion of Rtjmsey, J., on the motion for a new trial, in which we concur, that we deem it necessary only tо refer to the exception to the concluding sentence of the charge, on which special stress has been laid by the appellant on the argument in this court. The judge charged in regard tо the viciousness of the horse, that it was incumbent upon the plaintiff tо show by a preponderance of evidence, that the horse was not vicious. This charge if standing alone would be subject to сriticism, and if the judge had instructed the jury that the failure of the plaintiff to рrove that the horse was not vicious, would of itself entitle the defendant to a *483 verdict, it would have been erroneous. But taking the whole charge, in connection with the evidence, the jury could not have so understood “the judge. He had distinctly charged them, that if the damаge was occasioned by a ’ defect in the horse or in the hаrness, and would not have occurred if those defects had not еxisted, then the defendant was not responsible. Also that if the defendant or his servants were to some extent guilty of negligence, yet if the dеfect or default of the property did in fact exist, and but, for such defect or fault in the property the damage would not have rеsulted, the plaintiff could not recover.
The jury were thus distinctly instructed thаt to constitute a defense it was not enough to show that the horsе was vicious, but that to exempt the defendant from responsibility the dаmage must have been caused or contributed to-by that circumstаnce. In the portion of the charge excepted to, there is nothing which withdraAvs or conflicts with this ’ instruction.
The sentence excepted to relates wholly to the burden of proof on the question of the viciousness of the horse, and not to the sufficiency of that fact alone to constitute a defense. In this aspect it must be construed with reference to the state of the evidence. If there had been no evidence in the case to show that the horse was vicious, the charge might be subject to the criticisms made. But that question was one of the issues in the case, upon Avhich evidence had been adduced on both sides. The burden of proof on the whole case Avas with the plaintiff, and it was incumbent upon him to satisfy the jury by a preponderance of proof that thе injury had been occasioned by the negligence of the defendant’s intestate alone, and that he himself was free from fault. In cаses where contributory negligence may be claimed, it is settled in this court that the absence of contributory negligence is part of the plaintiff’s case, and the burden of satisfying the jury on that point rests uрon him. (Reynolds v. N. Y. Cent. R. R. Co., 58 N. Y., 248; Gaynor v. Old Col. R. R., 100 Mass., 208; Murphy v. Deone, 101 id., 466; *484 Park v. O‘Brien, 23 Conn., 339.) The character of the horse was the main fact upon which the question of contributory negligence depended, and having been assailed by evidence the burden rested upon the plaintiff to sustain it, or to show that it did not contribute to the damage. (Button v. Hudson R. R., 18 N. Y., 248.) If the evidence left the jury in doubt whether the injury was occasioned by the fault of defendant’s intestate alone, or was caused or contributed to by the viciousness of the horse, the defendant “was entitled to the benefit of that doubt, and the plaintiff lad failed to make out his cаse. This is only stating- in ■another form the proposition that the plaintiff was bound to ¡prove the controverted facts by a preponderance of testimony.
The judgment, should be affirmed.
All concur.
Judgment affirmed.