Glendening v. Sharp

Assuming that the defendant’s employees were guilty of negligence, it was incumbent on the plaintiff to prove that the deceased was free from any negligence which, contributed to the accident. No particular form of evidence, however, is requisite. It is enough if from the whole of the testimony given by both parties, the inference can be fairly and justly drawn, that the deceased, at the-time of the accident, did not omit the exercise of that care and caution which the law requires in cases of this kind. But in the-absence of evidence sufficient to establish this fact, a nonsuit should be granted. In the recent case of Cordell v. New York Central & Hudson River R. R. Co. (75 N. Y., 330), the Court of Appeals held, “that when the circumstances point just as much to> the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be nonsuited. The presumption that every person will take care of himself, from regard to his own life and safety, cannot take the place of proof.” The rule thus-declared is merely an assertion of the general principle that the-burden of proving a fact which is essential to maintain the action rests upon the plaintiff, and no amount of difficulty in making such proof will relieve him from that burden.

In the case before us no witness who saw the accident was produced, nor is there any direct evidence which affords the slightest explanation of the conduct of the deceased at the time it occurred. *80"The deceased, it appears, was a milkman, and was killed while crossing the railroad about half-past six o’clock in the morning of .January 27, 1879. He was seated in his covered wagon driving .his horse. He was a healthy and temperate man, and must have .been quite familiar with the locality of the accident. The railroad -crossing is upon a level with the street, and the railroad track is distinctly visible from any part of the street within a space of one .hundred and sixty feet from the crossing. It was not proved that •.the morning was so dark that an approaching train without a headlight could not be seen, nor that the engine had no head-light. •On the contrary, several of the plaintiff’s witnesses testified that ■they saw and heard the train approaching the crossing at a much greater distance than one hundred and sixty feet therefrom, and -one of them testified that he could see the lights. None of these witnesses had a better opportunity than the deceased of observing the ¡approach of the train, and none of them had occasion to look out for it. The inference from the testimony is certainly very strong that •.the deceased neither listened nor looked for an approaching train. In no point of view does it warrant the conclusion that he did either. There was, therefore, a failure of proof that the deceased .exercised the requisite care or made any effort to avoid the accident.

The exceptions must be overruled, and judgment must be ordered lor the defendant, with costs.

Exception overruled, and judgment for the defendant, with costs.