Blakeslee v. City of Geneva

Laughliet, J.

(dissenting) :

I am of opinion that the effect of the court’s refusal to charge the jury as requested on that subject was to permit the jury to charge the defendant with negligence in not anticipating that the contractor would fail to guard the trench at night because it was not guarded in the daytime. The request contained a correct, material, relevant proposition of law, and it should have been charged.

On the night before the accident a barricade was erected along the open trench and a white light was placed thereon. The evidence introduced on the part of plaintiff showed that on the night of the accident no barricade or light was placed about the trench, but one witness on the part of defendant testified that he placed a barrel on one end and a stick at the other end of the excavation the evening of the accident. There was no evidence that anything was “ put along the ditch ” as a barricade that night. The jury would naturally infer that the charge of the court, leaving it to them to-determine whether the white light and what was put along the ditch were sufficient as a light and barricade, had reference to the barricade and light erected on the preceding night. This constitutes reversible error. It was improper to allow the jury to speculate and find that even if the barricade and white light employed on the previous evening had been in place this would have been insufficient to protect the public and the accident would have happened.

There is no proof before us and it is not suggested by counsel that there was any error in the record as printed. Precedents, bad or good, like the opinions of experts, may be obtained for either side of most any proposition, but I know of no authority or precedent for this court indulging in the assumption that there has been a mistake made by the stenographer in taking or transcribing his minutes and upon that theory sustaining a judgment, which, according to the record as presented to us, should be reversed.

Judgment and order affirmed, with costs.