Lakin v. Wright

The court denied defendant’s various motions for dismissal of the complaint made on the ground that plaintiff had failed to prove negligence against him. These rulings were correct and the submission of the question to the jury was proper. (Anderson v. Schorn,. 189 App. Div. 495; affd., 231 N. Y. 590; Philpot v. Fifth Ave. Coach Co., 142 App. Div. 811; Clevenger Automobiles, 367-372.)

This being a death case, it was not incumbent upon the plaintiff to prove her decedent free from contributory negligence; it was a matter of defense to be alleged and proven by defendant. (Civ. Prac. Act, § 265.)…