Novack v. Zaleski

“The foregoing request No. 1 before argument is not a correct statement of the law, as it was not incumbent upon the plaintiff to prove that her decedent was not guilty of contributory negligence — this being an affirmative defense, the burden was upon the defendant to show that the decedent was so guilty.

Our attention was not directed to defendant’s request No. 3, which was given to the jury before argument, and which is as follows:

*454“I charge you that negligence is not to be determined after an injury has occurred by a consideration solely of what precaution could have been taken which would…