37 N.Y.S. 792 | N.Y. App. Div. | 1896
We entertain no doubt but that there was sufficient evidence -to sustain'the verdict of the jury as to. the negligence of the defendant 7 or his driver. ■ Considering the location- of the street, its condition at the time of the accident, being so obstructed as to leave only-enough space to permit a single team to pass by at' one time-, the large number of children in the street at the time, and the obstruction interfering with -a view of the street, it was fairly a question for the jury, whether the rate, of speed at which the team was being driven at the time of the accident, as the jury were justified in finding it, and the manner in which the team was being driven, was'. negligent. The jury were- justified in finding that it was the duty of the driver under the circumstances to drive the team carefully, and to be vigilant and careful, to see whether children were in the 'street and avoid injuring them. (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.)
It seems to us there was also sufficient evidence to sustain the finding by the jury that the deceased was free from contributory' negligence. No general rule of law can be laid down as to what in ail cases constitutes contributory negligence. The plaintiff has the burden of proof, and' must establish the absence of contributory negligence. But no particular kind or species/of evidence is .essential to be given. It is enough if, from all the evidence given in- the case on both sides, the inference can be fairly drawn by the jury that there was’ an absence of contributory negligence. The highest degree of care on the part of the injured party is not' required in ' order to establish freedom from contributory negligence, but only such care as an ordinarily careful and prudent person under all the . surrounding'circumstances would have used, and where, as here, the injured party is a boy of tender years, his age should' be considered and the care to' be exercised by him is such care as ah ordinarily ' careful and prudent person of his age would have used, ' We are
Under these circumstances, and considering the tender years of the deceased, we are of opinion that the jury were justified in inferring the absence of contributory negligence. The case was very carefully submitted to the jury by the trial judge. Every right of the defendant was fully protected. The verdict was not large. The
.The judgment should be affirmed, with costs.
. O’Brien and Ingraham, JJ., concurred; Yan Brunt, P. J., and Patterson, J., dissented.
Yan Brunt, P. J., and Patterson, J.:
We dissent upon the ground that there was conclusive evidence of contributory negligence.-•
Judgment affirmed, with costs.