Wood v. Incorporated Village of Andes

New York Supreme Court

Wood v. Incorporated Village of Andes

18 N.Y. Sup. Ct. 543

DecidedSeptember 15, 1877

StatusPublished

This text of 18 N.Y. Sup. Ct. 543 (Wood v. Incorporated Village of Andes) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. Incorporated Village of Andes, 18 N.Y. Sup. Ct. 543 (N.Y. Super. Ct. 1877).

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Opinion

Learned, P. J. :

In Reynolds v. New York Central and Hudson River Railroad Company (58 N. Y., 248) the Court of Appeals decided that, in this class of cases, it was necessary to a recovery that it should be affirmatively shown, by direct proof, given by the plaintiff, or from the circumstances, that the injured party was not guilty of contributory negligence; and that, where there was no evidence whatever on that point, the plaintiff could not recover.

Applying that principle to this case, we must hold that the plaintiff should have been nonsuited, for there was no evidence showing that the intestate had not been negligent. As in the Reynolds Case, so here, the deceased was found dead, and there was no proof that his own negligence had not contributed to the act.

Put the present is a still stronger case; the plaintiff’s intestate, at the time of the accident, is proved to have been very much intoxicated, and there is no contradictory evidence on that point. It is also proved that he was warned that the bridge was not safe; and this is not disputed. It also appears that there was another bridge which was safe, and which was within a few feet of that from which the accident happened. No necessity, therefore, compelled him to cross that from which he is supposed to have fallen. In crossing it after he had been warned of the danger, and while he was intoxicated, and when he could have safely crossed on another bridge, a few feet below, he was proved, affirmatively, to have contributed, by his own negligence, to the accident.

Without, therefore, passing on the question as to the defendant’s liability, under other circumstances, for the alleged imperfections of the bridge, we think, for the reason above stated, that there must be a new trial, costs to abide the event.

Present- — -Learned, P. J., Bocees and Boardman, JJ.

Motion for new trial granted, costs to abide event.

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Learned, P. J. :

In Reynolds v. New York Central and Hudson River Railroad Company (58 N. Y., 248) the Court of Appeals decided that, in this class of cases, it was necessary to a recovery that it should be affirmatively shown, by direct proof, given by the plaintiff, or from the circumstances, that the injured party was not guilty of contributory negligence; and that, where there was no evidence whatever on that point, the plaintiff could not recover.

Applying that principle to this case, we must hold that the plaintiff should have been nonsuited, for there was no evidence showing that the intestate had not been negligent. As in the Reynolds Case, so here, the deceased was found dead, and there was no proof that his own negligence had not contributed to the act.

Put the present is a still stronger case; the plaintiff’s intestate, at the time of the accident, is proved to have been very much intoxicated, and there is no contradictory evidence on that point. It is also proved that he was warned that the bridge was not safe; and this is not disputed. It also appears that there was another bridge which was safe, and which was within a few feet of that from which the accident happened. No necessity, therefore, compelled him to cross that from which he is supposed to have fallen. In crossing it after he had been warned of the danger, and while he was intoxicated, and when he could have safely crossed on another bridge, a few feet below, he was proved, affirmatively, to have contributed, by his own negligence, to the accident.

Without, therefore, passing on the question as to the defendant’s liability, under other circumstances, for the alleged imperfections of the bridge, we think, for the reason above stated, that there must be a new trial, costs to abide the event.

Present- — -Learned, P. J., Bocees and Boardman, JJ.

Motion for new trial granted, costs to abide event.

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18 N.Y. Sup. Ct. 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-incorporated-village-of-andes-nysupct-1877.

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