Mastin v. . City of New York
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. There was an entire failure of proof on the part of the plaintiff to show defendant’s negligence, or his own freedom- from contributory negligence, and the judgment entered upon the verdict cannot be sustained. (Birkett v. K. Ice Co., 110 N. Y. 504; Hartfield v. Roper, 21 Wend. 614; Brownell v. Flagler, 5 Hill,…
1Opinion of the CourtWillard Bartlett, J.
Unless the rule which requires affirmative proof of the absence of contributory negligence on the part of the plaintiff is to be ignored in actions to recover damages for personal injuries it seems to me that this judgment must be reversed. As I view the evidence, not only was there a failure to furnish affirmative proof that the plaintiff was not himself at fault, as in the case of Whalen v. Citizens' Gas Light Co. (151 N. Y. 70), but the plaintiff’s own testimony demonstrates his contributory negligence, as in the case of Dolfini v. Erie R. R. Co. (178 N. Y. 1).
The plaintiff, who was a…
2Cases cited2 opinions
- Dolfini v. . Erie R.R. Co.New York Court of Appeals · 1904
- Whalen v. . Citizens' Gas Light Co.New York Court of Appeals · 1896
3Cited by11 opinions
- Knapp v. . BarrettNew York Court of Appeals · 1915
- Ira S. Bushey & Sons, Inc. v. United StatesCourt of Appeals for the Second Circuit · 1949
- Grant v. United StatesCourt of Appeals for the Second Circuit · 1959
- Pecora v. MariqueAppellate Division of the Supreme Court of the State of New York · 1948
- Porter v. New York City Interborough Railway Co.Appellate Division of the Supreme Court of the State of New York · 1932
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