Jacobs v. Duke

1 E.D. Smith 271

• Court: New York Court of Common Pleas
• Decided: December 15, 1851
• Status: Published

Opinion

By the Court. Woodruff, J.

The court below erred in admitting evidence of the general reputation of the defendant’s driver, viz., that he is reputed a careless and reckless driver, &c. Also, in admitting evidence that the driver was careless on other occasions, or even habitually careless.

Had the issue in this case been upon the question whether the defendant was himself guilty of negligence in the discharge of a duty to employ skillful agents, evidence that he had employed an unskillful or unsuitable person, and that he had knowledge of such want of skill or unfitness, might have been proper. But the question in this case was, did the plaintiff sustain injury by reason of the actual negligence of defendant’s servant upon that occasion ? If not, then no matter how often the defendant’s servant had been negligent before, nor how unskillful he was in general. And if he did, then no matter how careful the defendant’s servant had been before, or how skillful he was, and no matter whether the defendant was aware of any previous carelessness or not, he is liable.

The reputation of being a careless driver is too vague and unsatisfactory to found a verdict that he was careless upon a particular occasion, when all that in fact took place can be laid before the jury. The facts as they transpired are the only proper matter for their consideration.

The judge also erred in refusing to charge the jury that if want of ordinary care on the part of the plaintiff concurred with the negligence of the defendant’s driver, both contributing to produce the injury, the plaintiff could not recover. Such is the rule of law. (Burckle v. Dry Dock Co. 2 Hall’s S. C. R. 151 ; Bush v. Brainerd, 1 Cow. 78 ; Rathbun v. Payne, 19 Wend. 400 ; Hartfield v. Roper, 21 Wend. 615 ; Brownell v. Flagler, 5 Hill, 283 ; Cook v. Champlain T. Co. 1 Denio, 99 ; Tonawanda R. R. Co. v. Munger, 5 Denio, 256 ; Brandi v. Troy R. R. Co. 8 Barb. 368.) It is unnecessary now to inquire whether a degree of negligence less than the want of ordinary care would deprive the plaintiff of a recovery. Such a degree of negligence is sometimes called “ slight neglect,” but the want of ordinary care, when that contributes to the injury, is fatal to the plaintiff.

On both grounds I think the judgment should be reversed.

Judgment reversed.