Button v. . the Hudson River Railroad Company , 18 N.Y. 248 ( 1858 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Two points are made for the appellants: First, that the justice, at the trial, erred in instructing the jury, in substance, that negligence of the intestate, to prevent a recovery, must have directly contributed to the injury; and, second, that the justice erred in refusing to charge that it belonged to the plaintiff, in order to maintain the action, to establish affirmatively that the intestate was not guilty of negligence.

In regard to the first point, if there was any negligence on the part of the intestate which contributed to the injury, it consisted of imprudently entering or remaining on the track of the defendants' road, and exposing himself to be crushed and killed by a passing car, as actually happened. Upon the evidence, there is nothing else in the case in respect to which negligence by the intestate, tending to the injury, can be imputed. And assuming that such was the negligence, its influence towards the result was wholly direct; nothing in any way affecting it intervening between them. It was a proximate cause of the consequence which followed. whether, therefore, as a general proposition applicable to all cases of actions for injuries from negligence, the negligence of the party injured, to preclude a recovery, must have directly contributed to the injury, be sound or not, it would seem to be free from objection as applied to the present case. The use or omission of the word "directly," in stating the doctrine to the jury in this case, if the jury possessed ordinary intelligence, which must be supposed, could not make any practical difference; the negligence of the intestate, if any, could not have operated as a cause of the result otherwise than directly.

The other point presents the question, upon whom was the burden of proof, in reference to negligence of the intestate conducing to the injury — whether it belonged to the plaintiff to prove affirmatively the absence, or to the defendants to prove affirmatively the presence, of such negligence.

In regard to all the circumstances essential to the cause of action, the plaintiff held and was required to sustain the affirmative. Among those circumstances were, that the defendants were negligent, and that the injury resulted from that negligence. If the intestate was negligent, and his negligence concurred with that of the defendants in producing the injury, the plaintiff had no cause of action. The reason why no right of action would exist is that both the intestate and the defendants being guilty of negligence, they were the common authors of what immediately flowed from it, and it was not a consequence of the negligence of either. The court cannot accurately, and will not undertake to, discriminate between them as to the extent of the negligence of each and the share of the result produced by each; neither, therefore, could allege against the other any wrong, and without a wrong there can be no legal injury. In this view, the exercise of due care by the intestate was an element of the cause of action. Without proof of it, it would not appear that the negligence of the defendants caused the injury.

The cases on this point lead to the same conclusion. InButterfield v. Forrester (11 East, 60), which was an action for an injury from an obstruction in a street, Lord ELLENBOROUGH said: "Two things must concur to support this action — an obstruction in the road, by the fault of the defendant, and no want of ordinary care to avoid it, on the part of the plaintiff." In Harlow v. Humiston (6 Cow., 189), a similar case, SAVAGE, Ch. J., said: "Negligence by the defendant, and ordinary care by the plaintiff, are necessary to sustain the action." The same doctrine is stated in Rathbun v. Payne (19 Wend., 399); see also Bush v. Brainard (1 Cow., 78); Hartfield v. Roper (21 Wend., 615), Brown v. Maxwell (6 Hill, 592), and Spencer v. The UticaRailroad Company (5 Barb., 337). In Holbrook and wife v.The Utica and Schenectady Railroad Company (2 Kern., 236), the plaintiffs sued for an injury to the wife, while a passenger on the defendants' cars, and the question arose, whether the plaintiffs must prove negligence of the defendants, in addition to the fact of the injury; and it was held that the onus as to negligence, and that the injury complained of was caused by the negligence, was on the plaintiffs. In Massachusetts, it has been adjudged in several cases that in an action for an injury from negligence, the plaintiff must not only prove negligence, but ordinary care on his own part. (Smith v. Smith, 2 Pick., 621; Lane v. Crombie, 12 id., 177; Adams v. Carlisle, 21 id., 146; Parker v. Adams, 12 Metc., 415.) In Maine and New Jersey the same rule prevails. (Kennard v. Burton, 25Maine, 49; Moore v. The Central Railroad Company, 4Zabriskie, 284.) The English decisions are to the same effect. (Lynch v. Nurdin, 1 Ad. El. N.S., 35; Clayards v.Dethick, 12 id., 439, 447; Gough v. Bryan, 2 Mees. Wells., 773; Bridge v. The Grand Junction Railroad Company, 3 id., 247, 248; Martin v. The Great Northern RailroadCompany, 30 Eng. Law and Eq. R., 473.)

It must not be understood that it was incumbent on the plaintiff, in the first instance, to give evidence for the direct and special object of establishing the observance of due care by the intestate; it would be enough if the proof introduced of the negligence of the defendants and the circumstances of the injury,prima facie, established that the injury was occasioned by the negligence of the defendants; as such evidence would exclude the idea of a want of due care by the intestate aiding to the result. Ordinarily, in similar actions, when there has been no fault on the part of the plaintiff, it will sufficiently appear in showing the fault of the defendant, and that it was a cause of the injury; and when it does so, no further evidence on the subject is necessary. The fact must appear in some way, but in what particular mode is unimportant. The evidence of it may be direct and positive or only circumstantial. Whatever the nature of the evidence, if there is any conflict as to the fact, there must be a preponderance of proof in support of it, or the action must fail.

In cases like the present, it is often of great practical importance that the jury be properly instructed as to the burden of proof, in respect to the care required of the plaintiff to entitle him to recover. The party holding it must do more than make a balanced case on that point. The scales must ultimately turn in his favor. In the present case it is quite clear that the error in the instruction on that subject was a material one, for which there should be a new trial.

In my opinion, the judgment should be reversed and a new trial granted, with costs to abide the event.