77 N.Y.S. 276 | N.Y. Sup. Ct. | 1902
Gentlemen of the Jury: The fact that I denied the defendant’s motion for a dismissal of the complaint, and that I denied the defendant’s motion for a direction of a verdict, must not be taken by you as an indication that I thereby meant that the plaintiff is entitled to a verdict in any event. All that these rulings meant was that the case is one which is to be disposed of by the jury upon conflicting facts, and upon the inferences to be drawn from the facts as they may be found to be true. It is, therefore, a case upon which the jury may find either way, as they may determine the facts. The responsibility for determining what the proper facts were in this case rests with you. You are the judges of the facts, and you must discharge your duty uninfluenced by mere statements of counsel which are not supported by the evidence nor supported by the instructions which I will give you. But, while you are the judges of the facts, it is your duty to take the law as the court will lay it down for your guidance, and to apply it to the facts as you may find them.
This action is brought by the plaintiff, as administrator, for the benefit of the next of kin of the boy who was killed. The action is founded upon a charge of negligence, and in every such case the rule is strict that the plaintiff, before he can recover, must satisfy the jury by a preponderance of the evidence that the injuries complained of were the result of defendant’s negligence, exclusive of any other primary cause. If the injuries were the result of an accident which occurred in spite of the exercise of the proper care by all parties to the transaction, however great a hardship it may involve, the plaintiff is without any remedy in the law. Another rule which is strict in this class of cases, and always enforced is, as a general rule, that the plaintiff must satisfy the jury that there was no contributory negligence over and beyond the negligence of the defendant. In the case of contributory negligence the rule "is that, if there was any, no matter
If, therefore, upon the whole of the evidence, you should find that, although the boy had not sufficient discretion and ability, within the rules laid down, yet that what he did or omitted to do would, under the same circumstances, have been contributory negligence if he had had such discretion, and that his parents, or either of them, were guilty of an omission of such care as persons of ordinary prudence would have exercised and deemed adequate under the same circumstances, and that the omission of such care on the part of the parents, or either of them, contributed to the injury, your verdict must be for the defendant. But if you should find either that the boy, whether of sufficient discretion and ability or .not, was wholly free from negligence on his part which contributed to the injury,
The case, therefore, practically comes down to this: Whether, under all the circumstances, taken together, the defendant, in the exercise of ordinary care and caution, as defined by me, and proportionate to the circumstances, could in fact have avoided the collision which caused the death of plaintiff’s intestate. If he did exercise all the care and caution that was required under all the circumstances, then he was not guilty of negligence, and defendant is entitled to a verdict, because in such case it was an unavoidable accident. But if the defendant was negligent in some way within the rules laid down by me, and thus caused the collision, .the plaintiff is entitled to a verdict,—always provided, however, that there was no contributory negligence within the rules laid down by me. When a person is injured no presumption arises that he was free from contributory negligence, and no presumption arises that anybody else is to blame. It is not enough for the plaintiff to prove facts from which either the conclusion of negligence or the absence of negligence may, with equal fairness, be drawn; but the burden of proof is upon the plaintiff to satisfy the jury by a preponderance of evidence that there was no contributory negligence within the rules laid down by me, and that- the negligence of the defendant was the sole cause of the accident. Unless the plaintiff has established both these points by a fair preponderance of evidence, the defendant is entitled to your verdict, and in such case you have no right to deprive the defendant of the benefit of the rule. A failure, therefore, to establish either proposition by a preponderance of evidence is fatal to the plaintiff’s case. But by a preponderance of evidence I do not mean a preponderance in point of number of witnesses, but a preponderance of facts and circumstances that carry conviction to your minds.
The result of these technical rules is that if, upon a consideration of all the facts and circumstances, inclusive of the probabilities to be fairly drawn from the facts which you find to be true, you cannot in your own minds say upon which side the evidence preponderates, that then it is an evenly-balanced case, and in such case your verdict must be for the defendant. You have seen all the witnesses who appeared on both sides upon the stand, you have heard their
If there is anything else that counsel desires me to add they will make their requests known.
Mr. Lauterbach: In relation to damages, I request your honor to charge the jury that a son is entitled to the support and maintenance from the father until he shall arrive at the age of 21 years, and that the father is entitled to the earnings of the child during that period only, and accordingly the jury must take into consideration the expense imposed upon the parents in the performance of that obligation, to determine whether they sustained any actual pecuniary injury.
THE COURT: I so charge, and I have, in effect, so charged.
Mr. Lauterbach: I also ask your honor to charge the jury that in considering the question of negligence the jury may take into
THE COURT: I so charge.
The jury then retired.
Verdict: The jury rendered a verdict for the plaintiff, and assessed' the damages at the sum of $3,125.
Defendant’s counsel moves for a new trial upon all the grounds-specified in section 999 of the Code of Civil Procedure. Motion denied. Exception by the defendant. Stay of 30 days after notice of entry of judgment. Plaintiff’s counsel granted 5 per cent, allowance.