Meloche v. Johnson

271 A.D.2d 1037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1947
• Status: Published

Opinion

Appellant Joseph J. Barcomb was driving an automobile which came into collision with a truck owned by respondent Johnson and operated by respondent Higgins. Three of four passengers riding in the Barcomb car were killed. Appeals have been taken from judgments entered on no cause verdicts in such actions. The driver likewise appeals. Hpon the trial a judgment was recovered in favor of Edward M. Meloche and a derivative action in favor of his father. Meloche, seated on the rear seat between two of the decedents, was asleep. There was a finding of negligence against defendants-respondents. These appeals present only questions of contributory negligence. The court charged the jury that the passengers were responsible for their failure to act to protect themselves, and that “ if the jury finds that they did not so act ” it amounted to contributory negligence. This placed too heavy a burden upon the estates of the intestates. Judgment of no cause of action against appellant Joseph J. Barcomb affirmed, without costs. As to the other three actions the judgments and orders are reversed, on the law and facts, and new trials granted, with one bill of costs to abide the event. Hill, P. J., Heffernan, Foster and Russell, JJ., concur; Brewster, J., dissents as to the reversal of the judgments in the death cases upon the ground that under all She proor there was a question of fact for the jury as to the contributory negligence of the deceased passengers and that the error in the charge as pointed out was unexcepted to and was not vital in the interests of justice.