2 D. Chip. 128 | Vt. | 1824
delivered the opinion of the Court.
Several questions are presented by the bill of exceptions arising out of the charge of the Judge, but in deciding the case, our attention has been confined to the point in relation to the duty of the Court to have charged the Jury upon the law as applicable to a case in which the negligence of the plaintiff or his servant may have caused or contributed to the injury complained of, which from the evidence contained in the record, appears to have been pertinent in the case, and upon which the counsel for the defendant in the Court below, requested the Court to charge. The plaintiff below charges the defendant with negligently and carelessly driving his (defendant’s) horse in the highway whereby the plaintiff’s horse, upon which the plaintiff’s servant was riding, in the same highway, was by the shaft of the wagon, drawn by the defendant’s horse, killed. The plaintiff having shown in evidence, facts from which negligence, want of care and diligence of the defendant might be inferred, and the defendant having shown in evidence facts from which the inference of negligence, want of care and diligence in the plaintiff ’s servant might arise, the charge of the Court was, that if the Jury found from the evidence before them, that the defendant did not use common care and diligence, in the management of his horse and wagon, at the time the injury happened, they would find for the plaintiff the value, &c. — if on the other hand, the Jury considered the defendant did use such care and diligence, as prudent men generally use, they would find for the defendant; and with this direction, and no other, the Court submitted the case; notwithstanding the counsel for the defendant requested the Court to instruct the Jury in the law, arising from the supposed fact of the plaintiff’s negligence. The Court would not have erred in refusing, if there had been no evidence tending to show that fact, or if the law arising from the fact would not have aided the defence — in the former
It appears by the charge of the Court, that the attention of the Jury was directed exclusively to the conduct of the defendant at the time the injury happened, and they were instructed to return a verdict for the plaintiff, if they found from the evidence that the defendant did not use common care and diligence, in the management of his horse and wagon. The charge is clearly erroneous. From this charge it would have been the duty of the Jury to have returned a verdict for the plaintiff, if the defendant had not been in the exercise of ordinary care and diligence, although the injury might not have accrued thereby. It was further the duty of the Court to have called the attention of the Jury to the conduct of the plaintiff’s servant, and to have instructed them at least, that if, but for the want of ordinary care and diligence in him, the injury would not have happened, it would be their duty to find for the defendant; for the law is, that where the injury arises from the plaintiff’s own misconduct, or want of ordinary caution, notwithstanding the defendant’s neglect, &c. the plaintiff cannot recover. 11 East. 60. 2 Taun. 314.
It is ordinarily the duty of a person on horse-back, to give the traveled path to one who is traveling in a wagon, or other vehicle, sanctioned by common consent, and immemorial usage.
The bill of exceptions in this case contains*much of the testimony given on the trial, and more than was necessary for the purpose of presenting the questions proper to be raised. Whether the weight of testimony is with the plaintiff or defendant, is not for the Court to decido, and the recent practice of burdening the record with the testimony is worse than useless.
The judgment of the Court is reversed.