Eastland v. . Clarke
New York Court of Appeals
Appeal from a judgment entered April 15, 1898, in favor of defendant, upon an order of the Appellate Division of the Supreme Court in the fourth judicial .department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and denying a motion for a new trial after a nonsuit granted by the trial court. The defendant is the owner of premises in the city of Rochester which she and her family occupy as a residence.
Read the full summary
Appeal from a judgment entered April 15, 1898, in favor of defendant, upon an order of the Appellate Division of the Supreme Court in the fourth judicial .department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and denying a motion for a new trial after a nonsuit granted by the trial court. The defendant is the owner of premises in the city of Rochester which she and her family occupy as a residence. Prior to ¡November 29th, 1895, one of defendant’s trees had blown down, and she instructed the plaintiff, who had done some gardening…
1Opinion of the CourtWerner, J.
The plaintiff, having been nonsuited, is entitled to the benefit of all facts and inferences which may be drawn from the evidence most favorable to liis contention. (Sheridan v. Brooklyn City & Newtown R. R. Co., 36 N. Y. 39 ; Rehberg v. Mayor, etc., 91 N. Y. 141.) In this aspect of the case we have presented to us the questions whether defendant was guilty of actionable negligence, and whether plaintiff was free from contributory negligence. The plaintiff assumed the burden of establishing affirmatively and concurrently both of these independent propositions.
We will first address ourselves…
2Cases cited14 opinions
- Pantzar v. . Tilly Foster Iron Mining Co.New York Court of Appeals · 1885
- Davidson v. . CornellNew York Court of Appeals · 1892
- Volkmar v. Manhattan Railway Co.New York Court of Appeals · 1892
- Benzing v. . Steinway and SonsNew York Court of Appeals · 1886
- Booth v. . Boston and Albany R.R. Co.New York Court of Appeals · 1878
9 more not listed; retrieve them via the Exa API.
3Cited by38 opinions
- Noseworthy v. City of New YorkNew York Court of Appeals · 1948
- Simone v. . KirkNew York Court of Appeals · 1902
- McGovern v. Inter Urban Railway Co.Supreme Court of Iowa · 1907
- O'Brien v. Luckenbach S. S. Co.Court of Appeals for the Second Circuit · 1923
- Hogeboom v. ProttsAppellate Division of the Supreme Court of the State of New York · 1968
33 more not listed; retrieve them via the Exa API.