Jostlen v. Great Atlantic & Pacific Tea Co. , 138 N.Y.S. 456 ( 1912 )

Lyon, J.:

The plaintiff was injured while engaged in removing a wagon which the defendant had left over night in Cherry alley in the city of Hudson, in a wheel of which the whiffletrees of the ice wagon upon which plaintiff was riding had become entangled. The court submitted to the jury four propositions, as to whether Cherry alley was a public thoroughfare; if so, whether defendant storing its wagon in Cherry alley constituted a nuisance; if so, whether such nuisance caused injury to plaintiff; and lastly, the amount of damages.

In trying to remove defendant’s wagon so that plaintiff’s wagon might pass, plaintiff cramped defendant’s wagon so that one of the front wheels rested against the hub of plaintiff’s wagon. Plaintiff then went to the end of the thill of defendant’s wagon and while endeavoring to draw the wagon away, having both hands at the end of the thill, the team of plaintiff’s wagon started, throwing the thill to the north and forcing plaintiff against a brick wall with iron projections, driving the thill into plaintiff’s body at the lower extremity, injuring him seriously.

The court charged the jury that the burden was on the plaintiff to establish his case by a preponderance of evidence, as to the character of the street; that there was a nuisance there; that he was hurt as a result of a nuisance, and the character of his injuries. Also that the plaintiff was not bound to any special care; that all he was bound to do was not to bring the injury upon himself deliberately or by rank carelessness; that in trying to extricate the whiffletree from the wheel of the wagon he was bound to do it in such a way as a reasonably prudent man would do it; that he could not be excused or claim damages against the defendant if by his own act he brought the injury upon himself, and that it must have been the result not of his act but of the nuisance which existed there.

At the close of the charge plaintiff’s attorney requested the court to charge: “ If the jury believe the defendant obstructed a public thoroughfare which amounted to a nuisance and that the plaintiff was injured thereby, the defendant cannot be relieved from the liability by any act of the plaintiff, Jostlen, unless it be by an act from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences. The "Court: I so charge,” to which the defendant excepted. The verdict was for $2,000, This request excluded the element of contributory negligence, and was error in holding that the defendant was liable unless plaintiff caused the injury himself with a full knowledge of the consequences. This instruction coming at the close of a somewhat extended charge was prejudicial and requires a reversal of the judgment and order appealed from.

All concurred, except Smith, P. J., dissenting in opinion, in which Betts, J., concurred.