Uknowich v. Szobo , 5 N.J. Misc. 242 ( 1927 )

Per Curiam.

In a cause of action involving a.n automobile accident, resulting in the death of a thirteen-year-old boy and terminating in a verdict for the defendant, the learned trial court charged the jury as • follows:

“The plaintiff can only recover by proving all the essential elements of his case, by a preponderance of the evidence, and proving that he did not know of the danger of the approaching car * * * and that ho was entirely free from blame, or that his actions did not contribute in any way to the accident which resulted in his injury.”

We think this application of the rule of contributory negligence was error, since it placed upon the plaintiff the burden of proving freedom therefrom, while the rule is settled that contributory negligence, where it does not manifestly or concededly appear from the plaintiff's case, is an affirmative defense, and must be supported by the weight of the evidence, as any other defense which the law imposes upon a defendant, in order to acquit him of blame, particularly where the person suffering the damage is dead and unable to respond in his own behalf. Durant v. Palmer, 29 N. J. L. 544; Danskin v. Pennsylvania Railroad, 79 Id. 526.

This conclusion requires that the rule to show cause be made absolute.