McGinity v. Mayor

5 Duer 674

Opinion

Duer, J.,

held, that the plaintiff was bound to show affirmatively, that there had been a neglect of duty Tpy the corporation, and that this was not shown merely by proving that the grate was insufficiently fastened at the time of the accident. There was no reason to believe, from the evidence, that the grate was improperly constructed, or that the defendants had any notice, or were chargeable with knowledge of its defective state. The chain might have been broken by an act of violence, which, for ought that appeared, may have been committed only a short time before the plaintiff was injured. The verdict, therefore, was not sustained by the proof that the plaintiff was bound to give, and must be set aside.

Mew trial granted, upon payment of costs.