Fassbender v. Western Transit Co.

City of New York Municipal Court

Fassbender v. Western Transit Co.

7 N.Y.S. 134, 26 N.Y. St. Rep. 112, 1889 N.Y. Misc. LEXIS 964

DecidedOctober 3, 1889

StatusPublished

This text of 7 N.Y.S. 134 (Fassbender v. Western Transit Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fassbender v. Western Transit Co., 7 N.Y.S. 134, 26 N.Y. St. Rep. 112, 1889 N.Y. Misc. LEXIS 964 (N.Y. Super. Ct. 1889).

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Opinion

Per Curiam.

We have examined the elaborate appeal-book and briefs

submitted, and are satisfied that the evidence sufficiently supports the verdict rendered by the jury. In the exercise of our discretion we decline to review that portion of the charge of the trial judge (that was not excepted to) wherein he said that the burden of proof was upon the defendant to show that the plaintiff, as carrier, was negligent. Oil Co. v. Insurance Co., 79 N. Y. 506. As a rule, a party charging negligence must prove it, and, if the peculiar features of the case brought it within one of the exceptions to the rule changing the burden of proof, the defendant might, by calling the trial judge’s attention to it, have elicited a further charge satisfactorily covering the exception applicable. No such request was made, nor was any exception taken to what the judge did say, and he probably assumed that both parties acquiesced in his view that the general rule controlled. There was evidence that the injury about which the dispute arose was discovered in Chicago, and the-plaintiff’s duty terminated at Buffalo, so that proving the bad condition of the goods at Chicago did not necessarily imply that the plaintiff was the cause-of the injury, so as to throw upon him the burden of proving the contrary. Upon the entire case we are of opinion that substantial justice has been done, and that the judgment appealed from should be affirmed, with costs. All concur.

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Per Curiam.

We have examined the elaborate appeal-book and briefs

submitted, and are satisfied that the evidence sufficiently supports the verdict rendered by the jury. In the exercise of our discretion we decline to review that portion of the charge of the trial judge (that was not excepted to) wherein he said that the burden of proof was upon the defendant to show that the plaintiff, as carrier, was negligent. Oil Co. v. Insurance Co., 79 N. Y. 506. As a rule, a party charging negligence must prove it, and, if the peculiar features of the case brought it within one of the exceptions to the rule changing the burden of proof, the defendant might, by calling the trial judge’s attention to it, have elicited a further charge satisfactorily covering the exception applicable. No such request was made, nor was any exception taken to what the judge did say, and he probably assumed that both parties acquiesced in his view that the general rule controlled. There was evidence that the injury about which the dispute arose was discovered in Chicago, and the-plaintiff’s duty terminated at Buffalo, so that proving the bad condition of the goods at Chicago did not necessarily imply that the plaintiff was the cause-of the injury, so as to throw upon him the burden of proving the contrary. Upon the entire case we are of opinion that substantial justice has been done, and that the judgment appealed from should be affirmed, with costs. All concur.

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Bluebook (online)

7 N.Y.S. 134, 26 N.Y. St. Rep. 112, 1889 N.Y. Misc. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fassbender-v-western-transit-co-nynyccityct-1889.

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