Rice v. New York City Railway Co.

47 Misc. 656, 94 N.Y.S. 326

Opinions

Scott, J.

If the case had gone to the jury solely upon the colloquial charge to the effect that “ the burden of showing that the accident did not happen through the defendant’s negligence is upon the defendant,” it would be open to defendant to claim that the jury were wrongly instructed. Maher v. Metropolitan St. R. Co., 102 App. Div. 517. The court, however, afterward charged, at plaintiff’s request, that “ while the law calls upon the defendant, under such a condition as the plaintiff claims existed here, to explain, yet on the whole case the burden is upon the plaintiff in the end to convince the jury that the accident occurred through the negligence of the defendant.” This was a perfectly correct statement of the law (Maher v. Metropolitan St. R. Co., supra), and cured any error in the colloquial charge. The defendant did not clear itself of negligence, the evidence justified the verdict and its amount was moderate.

The judgment should be affirmed, with costs.

Dugko, J’"., concurs.