96 Tenn. 50 | Tenn. | 1896
This action was brought by the plaintiff in error to recover damages for personal injuries which he sustained while walking along one of the streets of the city of Nashville, from a fall into an open water-drain, which, the declaration alleges, had been negligently left by the city authorities in. an unsafe and dangerous condition. The record discloses that this drain was at the point of intersection of two streets and ran between the end or curb line of the pavement of one of these streets and the beginning of the crosswalk of the other; that it was used as a conduit for surface water, and was of inconsiderable depth and width. Upon the trial of the case, the jury rendered a verdict for the defendant, and, failing in his motion for a new trial, the plaintiff has appealed and has assigned a number of errors upon the charge of the Court. Only one of these will be discussed in this opinion; the others, being less important, will be disposed of orally.
The trial Judge, among other things, said to the jury that, in order to recover, the plaintiff “must show, by a preponderance of the evidence, that he was, at the time of the accident, in the exercise of ordinary care, and could not have avoided the accident' by the exercise of care on his part.” In actions for personal injuries, and with regard to the question presented in this instruction, there is an ir
The rule itself, and the reason upon which it rests, is stated clearly in Park v. O’Brien, 23 Conn., 339, in the following terms: “We accord entirely with the decision cited by the plaintiff in error, the defendant below, to show that, in this suit, the burden of showing that the injury was not attributable to the want of reasonable care on his part rested on the plaintiff. The reason of this rule is that the plaintiff must prove all the facts which are necessary to entitle him to recover, and this is one of( these facts. It was necessary for the plaintiff to prove (1) negligence on the part of the defendant in respect to the collision alleged, and’ (2) that the injury to the plaintiff occurred in consequence of that negligence. But, in order to prove this latter point, the plaintiff must show that such injury was
Mr. Beach, in his work on Contributory Negligence, seems inclined to this view as being the soimder, because in accord with the rule of evidence which puts the burden of proof on that party having the affirmative of the issue, as well as for the reason, as suggested by him, that in a very large proportion of suits brought for personal injuries, common observation is that the negligence of the injured party has concurred to bring about the re-
But the special ground for the rule in question, as stated or assumed by the Courts which adhere to it, is that the plaintiff, having taken the affirmative, in order to recover, must prove all the essential facts, including the fact that he was not guilty of concurring negligence. That he must prove the essential facts is admitted, and that he has proved them when he shows the injury and that the defendant’s neglect is the proximate cause of it, it seems to us clear, and that, nothing more appearing, he would be entitled to a recovery, unless it
When to these considerations is added the force of the presumption which is in accord with common experience (Mr. Freeman’s note, p. 687, vol. 62, Am. Dec.), that any man of sound mind will ordinarily avoid personal injuries, it seems to us that the rule which imposes upon the plaintiff the burden of showing care when there is nothing to suggest the want of it, in such a case as this, is unsound, and not in harmony with the general rules of evidence. And this is the view taken by a great number of Courts. In these Courts the rule obtains that the plaintiff has discharged his full duty when he has shown his injury and that the negligence of the defendants was its proximate cause. It then devolves upon the defendants to show con
Judge Dillon, in the second volume of his work on Municipal Corporations, Sec. 1026, adopts the view held by these Courts as the better one, and says “that where the plaintiff’s contributory fault does not appear upon his own testimony, the burden of proof to establish it rests upon the defendant. In other words, the plaintiff is not bound to prove affirmatively that he was himself free from negligence. When the plaintiff’s fault is relied upon as a defense to defeat a recovery, the burden to establish such defense rests with the defendant. ’ ’
We regard this as an accurate statement of the rule. While this is so, the rule is not inflexible. As has been before intimated, whenever plaintiff’s own case, or the evidence of the defendant or of
As is said by Mr. Beach in his work before referred to, § 427, in commenting on the practical application of this rule in those jurisdictions which place the duty of showing contributory negligence on defendant, ‘ ‘ the plaintiff must make out his case in full, and, where the circumstances attending the injury were such as to raise a presumption against him in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory negligence.” It follows, therefore, that the charge of the trial Judge, in this particular, and as an abstract proposition, was error; yet, when applied to the facts of this case, it was not a reversible one, for the record shows that the plaintiff was blind, and was on the streets, unattended, when he received' the injury, and had full knowledge of the existence and character of the drain when the accident occurred.
Blindness not only does not constitute a defense for failure to exercise ordinary care under given circumstances; on the contrary, “common prudence requires that the blind should exercise far greater-care, in proportion to the danger to which men in general are constantly exposed, than is required of those in full possession of the faculty of sight.” Winn v. Lovell, 1 Allen, 172; Davenport v. Ruck
We think his knowledge and his physical infirmity, added to the fact that he was unattended at the time of the accident, were sufficient, of themselves, to require the plaintiff to show that the injury was without fault or negligence on his part.
Affirmed.