Brick v. Metropolitan Street Railway Co. , 71 N.Y.S. 314 ( 1901 )

Per Curiam.

The court charged the jury as follows: “The plaintiff, in order to recover, must not only establish to your satisfaction from the evidence presented, that he has been entirely free from negligence and' from any. contributory negligence such as might have brought about the accident, but he must also as well establish to your satisfaction that the negligence was entirely the negligence of the defendant." To this portion of the charge plaintiff duly excepted. It was error for the court to charge that it was necessary for the plaintiff to prove his freedom from any contributory negligence such as might have brought about the accident. The correct rule of law is that the plaintiff’s negligence must have contributed to the accident, and that negligence must, be proximate and not remote.

It was further error in this case, in view of the defendant’s story of. how the accident happened, i. e.} that the plaintiff jumped back from a carriage against the shaft of the defendant’s cart, for the court to charge that the plaintiff was bound to show that the negligence was entirely the negligence of the defendant. It may be that the accident occurred by reason of the negligence of the driver in charge of the carriage passing by and the negligence-of the defendant’s servant. All that the plaintiff was called upon, to prove was that the accident occurred without negligence on his part contributing thereto, and because of the negligence on the part of the defendant.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Fitzsimons, Ch. J., Hascall and O’Dwyer, JJ.

Judgment and order reversed and new trial ordered, with costa to appellant to abide event.