Bradley v. Second Avenue Railroad

New York Court of Common Pleas

Bradley v. Second Avenue Railroad

8 Daly 289

DecidedJune 16, 1879

StatusPublished

This text of 8 Daly 289 (Bradley v. Second Avenue Railroad) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bradley v. Second Avenue Railroad, 8 Daly 289 (N.Y. Super. Ct. 1879).

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Opinion

Larremore, J.

This action was brought t® recover damages for the alleged negligence of the defendant’s servantíf'in causing the death of James Bradley, plaintiff’s husband and intestate. The defendant claimed that the intestate’s death was caused by his own carelessness and negligence. On the trial the driver of the car that caused the injury testified that the deceased “ came staggering over to catch the horses by the heads; he seemed to me to be drunk, but I could not say positively he was.”

At the close of the trial the following requests to charge were made by the counsel for the defendant, i. e., “ that if the jury believe that the deceased was intoxicated at the time of the accident, and that his intoxication was so great that it rendered him incapable of a vigilant use of his faculties and senses while approaching the defendant’s track, the jury may infer that the deceased was guilty of negligence without which the accident would not have happened, and they must find a verdict for the defendant.

“That if the jury believe that the deceased was intoxicated, and would not have been injured had he been sober, the plaintiff cannot recover.”

The court refused thus to charge, and to such refusal the defendant’s .counsel duly excepted.

I think this last exception well taken. As there was some testimony upon the question of Bradley’s intoxication at the time-of the accident, the defendant was entitled to a specific charge upon that subject.

If the deceased was incapable from intoxication of using, and did not use, his ordinary faculties of care and caution in .crossing.the street, the .question of contributory negligence [291]*291was regularly raised and presented. (Ernst v. Hudson R. R. Co., 39 N. Y. 61 ; Gronzales v. N. Y. & Hudson R. R. Co., 38 N. Y. 440 ; McCall v. N. Y. Central R. R. Co., 54 N. Y. 642 ; Weber v. Same, 58 N. Y. 451.) Certainly, if the deceased was intoxicated at the time, and “ would not have been injured had he been sober,” the jury should have been instructed on z-eaching such a conclusion to find for the defendant.

For this reason I am of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Van Hoesen and Beach, JJ,, concurred.

Judgment reversed and a new trial ordered, with costs to abide.

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Larremore, J.

This action was brought t® recover damages for the alleged negligence of the defendant’s servantíf'in causing the death of James Bradley, plaintiff’s husband and intestate. The defendant claimed that the intestate’s death was caused by his own carelessness and negligence. On the trial the driver of the car that caused the injury testified that the deceased “ came staggering over to catch the horses by the heads; he seemed to me to be drunk, but I could not say positively he was.”

At the close of the trial the following requests to charge were made by the counsel for the defendant, i. e., “ that if the jury believe that the deceased was intoxicated at the time of the accident, and that his intoxication was so great that it rendered him incapable of a vigilant use of his faculties and senses while approaching the defendant’s track, the jury may infer that the deceased was guilty of negligence without which the accident would not have happened, and they must find a verdict for the defendant.

“That if the jury believe that the deceased was intoxicated, and would not have been injured had he been sober, the plaintiff cannot recover.”

The court refused thus to charge, and to such refusal the defendant’s .counsel duly excepted.

I think this last exception well taken. As there was some testimony upon the question of Bradley’s intoxication at the time-of the accident, the defendant was entitled to a specific charge upon that subject.

If the deceased was incapable from intoxication of using, and did not use, his ordinary faculties of care and caution in .crossing.the street, the .question of contributory negligence [291]*291was regularly raised and presented. (Ernst v. Hudson R. R. Co., 39 N. Y. 61 ; Gronzales v. N. Y. & Hudson R. R. Co., 38 N. Y. 440 ; McCall v. N. Y. Central R. R. Co., 54 N. Y. 642 ; Weber v. Same, 58 N. Y. 451.) Certainly, if the deceased was intoxicated at the time, and “ would not have been injured had he been sober,” the jury should have been instructed on z-eaching such a conclusion to find for the defendant.

For this reason I am of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Van Hoesen and Beach, JJ,, concurred.

Judgment reversed and a new trial ordered, with costs to abide.

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8 Daly 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-second-avenue-railroad-nyctcompl-1879.

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