Gentile v. New York City Railway Co.

McCALL, J. We fail to find in this record the slightest proof to support the claim or allegation of negligence on the part of the defendant, unless we are willing to assume that the mere happening of the accident implies negligence. The burden that the law imposes upon the plaintiff of sustaining by a preponderance of credible proof plaintiff’s assertion of negligence on the part of defendant, and of likewise proving himself free from contributory negligence, he has, in so far as we read this rec [265] ord, utterly failed to sustain, and the judgment rendered herein cannot, therefore, be upheld, and must be reversed, with costs. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. SCOTT, J., concurs.