Moody v. . Osgood

*493 Reynolds, C. The case made at the trial was not one which the judge was at liberty to withhold from the consideration of the jury, and the motion to dismiss the complaint was properly denied. That the defendant was driving his team in a public thoroughfare at a very reckless and dangerous rate of speed cannot be denied, and no attempt is made to justify or excuse it, and none, in fact, could properly have been made. The motion to dismiss the complaint was therefore grounded upon the allegation that the negligence of the plaintiff contributed to the injury. In such a case the rule is quite well settled that the evidence must present a state of facts from which only a single inference can be properly drawn, and that is, that the plaintiff was guilty of negligence, as a necessary conclusion of law, which caused or contributed to the injury complained of. It is very obvious that this is no such case, and it is doubtful, in any aspect, if any want of care is chargeable to the plaintiff. The jury found there was none, and we think the evidence justified the finding. The plaintiff alighted from the car at the terminus of the Eighth Avenue railroad, at One Hundred and Twenty-fifth street, and attempted to make her way to the sidewalk, a distance of a little over twenty-two feet. On descending from the steps of the car she looked in either direction—saw vehicles going each way, but none within a block, and before she had passed a quarter of the distance to the sidewalk she was struck by the defendant’s team, and received the injury for which redress in damages is sought. It is by no means unlikely that the team of the defendant was not seen by the plaintiff when she left the Eighth Avenue car, for it turned into the avenue under full headway, in a race with a rival vehicle, at or about One Hundred and Twenty-first street, and if she had seen it among the various teams on the avenue she could hardly have estimated the rate of speed of the defendant. She was not chargeable with notice that this locality was one where gentlemen tested the speed of their fine horses, or bound to guard herself, without notice or knowledge, against injury from the wrongful act of the *494 defendant. She had a perfect right to pass from the car to the sidewalk, and being in a public thoroughfare she was at liberty to assume that her rights would not be wrongfully invaded. It was plainly for the jury to say whether, under the circumstances, she used all the care that a prudent person should have exercised. Ho exception was taken by counsel for the defendant to any portion of the charge of the judge to the jury. We think the charge was entirely correct, and in this view the counsel for the defendant concurs. The jury had been properly instructed that, to entitle the plaintiff to recover, the injury must have resulted solely from the negligence of the defendant, and if the negligence of the plaintiff, in any way, contributed to it, she was not entitled •to recover. This direction was most unquestionably correct, and "gave the jury a clear and distinct definition of their duty. The counsel for the defendant requested the judge to charge .that, if the evidence was equally balanced on the question of negligence in the defendant and plaintiff, the defendant was entitled to the verdict; and again, in the same connection, that if the evidence was equally consistent with the absence of as with the existence of negligence in the defendant, the plaintiff could not recover. The jury had before been properly'instructed in respect to everything necessary to a proper disposition of the case. The judge was under no obligation to submit to the jury abstract propositions of law for their consideration. It was sufficient that the present case, upon the law and evidence, was properly submitted to their judgment. Under the charge, as assented to, the plaintiff could not have recovered, unless’the jury found that the negligence of the defendant solely caused the injury, and that no negligence of the plaintiff in any way contributed to it. The proposition of equally balanced evidence presents a mere abstraction. The courts have not the capacity, and cannot detect any mathematical equality or exact balance of evidence to be committed to a jury or ascertained by them. The law is not one of the exact sciences, and the *495 evidence in a given cause is not capable of division and subdivision in mathematical proportions. The learned judge did say that when the evidence, in the estimation of the jury, was nearly balanced, a slight preponderance of evidence was sufficient to turn the scale in favor of the party where such-preponderance was found. The jury had before been fully instructed that the burden of proof was upon the plaintiff to show the negligence of the defendant, and that the want of care of the plaintiff did not in any way contribute to the injury. This was all, I think, that the judge was required to do; and there must be, in the trial of a cause at circuit, a period of time when a circuit judge may properly decline to entertain any further application from either party to give further instructions to a jury, and that period is ordinarily reached when, after the close of the evidence in a cause, the jury have been properly instructed upon every question material to the disposition of the case, and I think that point was reached, in this case, when the charge of the judge had been concluded, to which neither party took any exception. The propositions of the counsel for the defendant, which we have been considering, were, after all, nothing more than an attempted minute amplification of the charge as it had been given. To say that if the testimony on the question of negligence was equally balanced the plaintiff cannot recover, is really saying nothing more than if the plaintiff (having that burden) did not make out her case to the satisfaction of the jury, the verdict ought to be for the defendant; and the same idea is suggested when it is urged that if the evidence is equally consistent with a verdict either way on the question of negligence, the plaintiff could not recover. It may also be suggested that these propositions involved an assumption that the evidence of negligence was equally or nearly balanced, and I find nothing in the case giving any support to such a position. While in cases of this character it is incumbent on the plaintiff to show that the injury was caused by the negligence of the defendant, to which the plaintiff in no way contributed, *496 the rule in respect to any contributory negligence of the plaintiff is satisfied, if it appear from the whole case that the plaintiff was not chargeable with any want of care. (2 Red-field on Railways [4th ed.], 236; Johnson v. The Hudson River R. R. Co., 20 N. Y. R., 65.) It is scarcely necessary to say that the request of the judge to charge the j ury that, from the locality of the residence of. the plaintiff, and her custom of going up and down Eighth avenue, the jury might presume that she was acquainted with the rate of speed employed by the drivers of vehicles on that part of the avenue, was properly refused. It could not be a proper direction in any case; and to give it any point in this, the jury must have presumed that the plaintiff, when she left the car, knew the defendant was coming upon her at a fearful pace, which is quite absurd. I find no error in rejecting .evidence on the trial, and the judgment must be affirmed, with costs. All concur. Judgment affirmed.