Gleeson v. Brummer

PARKER, J. We agree that the plaintiff failed to show freedom from contributory negligence on the part of Gleeson, within the rule laid down in Hart v. Bridge Co., 84 N. Y. 62, Hale v. Smith, 78 N. Y. 483, Warner v. Railroad Co., 44 N. Y. 471, Reynolds v. Railroad Co., 58 N. Y. 248, and Cordell v. Railroad Co., 75 N. Y. 330. Whether the rule of contributory negligence announced in those cases has since been overruled presents the real point of difference. The presiding justice is of the opinion that this result was accomplished by the decisions in Tolman v. Railroad Co., 98 N. Y. 203, and Galvin v. Mayor, etc., 112 N. Y. 228, 19 N. E. 675. It must be admitted that the expressions quoted from the opinion in Tolman’s Case are not in harmony with the rule of the previous decisions, but it should not be held by this court that by it the court of appeals in [376] tended to overthrow the then existing rule, and establish, a radically different one, for two reasons: , (1) Because the court was entirely familiar with the rule and the cases establishing it, and would have carefully considered and distinguished them, had its purpose been to accomplish a modification of the rule. This was not done, nor were the cases even referred to. (2) The course of the argument strongly indicates that the court had no such purpose. The plaintiff’s intestate was killed at a crossing on defendant’s road, and the trial court refused to nonsuit on the ground that the plaintiff’s evidence failed to show freedom from contributory negligence. A judgment recovered in favor of the plaintiff was affirmed at general term, and this judgment the court of appeals reversed, holding that the evidence was insufficient to make the question of contributory negligence one of fact. In view of tire result, it is quite apparent that no change of rule was intended. The question of the desirability or propriety of a modification was not presented. It was not essential to the decision made that it should be passed upon or considered. What the court decided was that the plaintiff had not met the burden of proof resting upon her, to show such facts as would authorize a jury to find that her intestate was free from contributory negligence. This proposition the court attempted to, and did, establish. As a preliminary step in the argument by which that result was accomplished, the legal proposition for which the respondent contended was conceded most strongly in his favor, to the end that the strength of the argument should more fully appear. And discussing the evidence from that standpoint, the court reached the conclusion that the plaintiff should have been nonsuited because of her failure to prove such facts as would permit a jury to find absence of negligence on the part of the intestate. Galvin v. Mayor, etc., which is as favorable to the appellant’s contention as any case to be found in the books, presents no indications of an intent to change the rule of the cases we have cited. It neither discusses nor refers to them. The facts proved were discussed by the court, and the comment made that “many well-grounded inferences are possible from the evidence.” After suggesting and considering some of them, the court concluded that part of the argument as follows: “The inferences we have suggested were those which might reasonably have been deduced from the evidence by the jury, and we think it was error to take the case from them.” My conclusion is that the rule of the cases first cited still obtains, and justifies the decision of the trial court The judgment should -be affirmed. O’BRIEN, J., concurs.