Harpell v. Curtis

1 E.D. Smith 78

• Court: New York Court of Common Pleas
• Decided: November 15, 1850
• Status: Published

Opinion

By the Court. Woodruff, J.

The opening of a case for further testimony, after the parties have rested, is in the discretion of the justice, while the parties, with their witnesses, are all present, and when it does not appear that the opposing party is in any wise prejudiced. We will not reverse a judgment for a mere departure from the usual course of proceedings, in relieving a party from the consequence of declaring an intention to offer no further testimony, when, upon a moment’s reflection, he discovers that some evidence which he deems important has been overlooked. There was in this case no final submission previous to the admission of the further proof.

Upon the evidence, we cannot say that the justice found so against the proof, or so erred in the application of any rules of law, as to call for our reversal of the judgment. The defendants’ driver knew there was a hole in the pavement. He had seen it before. He should have driven so slowly through it (if he could not avoid it) as not to endanger the pole of his stage ; and if proper caution in driving was not sufficient to prevent that danger, he should have turned to another street. Or if this did not suit his convenience, he should have taken care to use a stage of strength sufficient to bear the inequalities over or through which he knew he was to drive. If it be assumed, as the defendants claim, that the driver was prudent in the management of his horses, and in the speed with which he drove, the presumption from the breaking of the pole is, that it was defective or insufficient for the purpose, and this presumption was not rebutted by any proof whatever. In no just sense can the collision be ascribed to inevitable accident.

Nor can we say that the injury to the plaintiff resulted from the negligence of his servant. Admitting the legal principles urged by the counsel for the appellants, the question was purely one of fact, upon which the finding of the justice was not so against the evidence that it ought to be set aside. We would not set aside the verdict of a jury in. a like case, and the finding of the justice is to be treated in effect as such a verdict. The plaintiff’s servant had, it is true, turned his horse’s head towards the middle of the street, but 'this is not necessarily negligence. He was near, watchful, ready to turn the horse at any moment, and probably would have succeeded in avoiding injury from, any one passing in the usual, customary and proper manner. In the use of the public highway, a party has a right to expect from others ordinary prudence, at least, and to rely upon that in determining his own manner of using the road; not to justify his own foolhardiness, but to warrant him to pursue his own business in a convenient manner, where he has no reason to suppose the convenience or safety of others will be prejudiced thereby.

The judgment must be afiirmed with costs.