Dorr v. McCullough

Hardin, P. J.: Plaintiff was burdened with the duty of showing that the intestate was free from contributory negligence. Ho direct proof of freedom from negligence of the intestate was given, and the facts and circumstances disclosed did not warrant a finding hy the jury that the intestate was free from contributory negligence. If we could assume upon the facts that it was sufficient to raise a doubt whether the intestate was free from contributory negligence, and that the circumstances pointed as much to the negligence of the deceased as to its absence, or that the circumstances point in neither direction, we should not be permitted’ to say that the nonsuit was erroneous. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420.) [331] „ After a careful study of the evidence we are of the opinion that this is not a case where the court could reasonably “ shut its eyes to apparent contributory negligence on the part of the intestate.” The facts in this case differ from those in Waldele v. R. R. (4 App. Div. 549). It may be regretted that the intestate was inconsiderate and incautious in his approach to the crossing; but, according to the rule of law laid down in the case, to which attention has been directed, it must be held that the nonsuit was properly granted, and the exceptions should he overruled and judgment ordered in favor of the defendants. All concurred. Plaintiff’s exceptions overruled and motion for a new trial denied, with costs.