Van Norden v. Robinson , 10 N.Y. St. Rep. 643 ( 1887 )

BocKes, J.:

I concur for reversal. It is said in The P. W. and B. R. R. Co. v. Kerr (25 Md., 531), that an observance of the law is regarded as necessary to satisfy the first requirement of ordinary care, and it seems that the omission of the statutory duty, without other proof by way of explanation of the occurrence, raises a presumption that the injury was because of the omission. It is said, in substance, in The Pennsylvania (19 Wall, 136), that when one is proceeding in actual violation of a statutory rule, intended as a protection against the cause of injury “ it is no more than a reasonable presumption that the fault, if not the sole cause, was, at least a contributory cause of the disaster; ” that in such case the burden rests upon the party omitting the statutory requirement “ of showing, not merely, that the fault might not have been one of the causes, or that it probably was not, but that it could not have been.” I fully concur in this line of reasoning which has, as I conclude, here direct application.

Judgment reversed, new trial granted, referee discharged, costs to abide event.