Professional Documents
Culture Documents
1896
Recommended Citation
Cobb, Howard Owen, "Burden of Proof in Cases of Contributory Negligence" (1896). Historical Theses and Dissertations Collection.
Paper 343.
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BURDEN OF PROOF
T HE SI S
BACHELOR OF LAW
-BY-
1896
C 0 N T E N T S
CHAPTER 1
CHAPTER II.
CHAPTER III.
AMERICAN JURISDICTIONS FOLLOWING THE ENGLISH DOCTRINES
CHAPTER V.
A1IRICAN JURISDICTION
IN WHICH THE DOCTRINE IS UNCERTAIN
SECTION I. THE RULE IN CONNECTICUT . . . . ....
CHAPTER VI.
SUMMARY
GENERAL DOCTRINE . . . . . . . . .. 98
cise of ordinary care, but did not, the law will leave
evidence of
care, the plaintiff is saved from giving
to
duty of care places the burden on the plaintiff
may infer
present some evidence from which the jury
E1GLISH DOCTRINE
Forrester
rect act and the court, being of the opinion that the
the Grand Junction R.R. Co. 3 I4. & W. 244, did the
ant s .
Section II. The Rule in England today.
vs. The London and South Western R'y Co., 12 App. Cases, 41.
In that case the House of Lords laid down the latest statement
ants' railway line crossed the public foot path on the level,
The judge left the case to the jury who having found for
of Appeals (Brett M.R., Bowen S& Fry L.J.J.) affirmed this de-
in his charge to the jury in Radley vs. London & North Western
R'y Co. 1 App. Cas. 755 ; and in Davey vs. London & Southwes-
tern R'y Co., 12 Q.B. Div. 70; that the plaintiff was not
but was also bound to give prima facie evidence that the de-
her prima facie case. From this decision the plaintiff ap-
pealed.
evidence only on the first head, that the accident was through
would prevail.
that issue."
AMERICAN JURISDICTIGNIS
considered.
Alabama--
was tried held that the question had been ruled averse-
3 Colo. 129.
of the plaintiff."
wharf was torn up and broken, and the foot of the plain-
The plaintiff was the owner of the wharf, and was in the
Stated.
gence upon the defendant ; and this has been the uniform
loss of his life on the ground that the injury was caused
the injury.
and with care for his own safety and will not recklessly
as in the other.'
3S
part.
case at bar.
Section XIV. The last holding in Nebraska.
was free from fault, the burden rested upon the de-
plaintiff.
fendants that the verdict should have been for the de-
had. "
the same motion, was set aside. The court further says:
41
lumber, and the rail being off the side, which had been
the sameas the street was built upon piles across some
defendant."
42
way. All that was known of the matter was that on that
granted.
Co., 21 S.C. 495, upon the trial before the lower court,
from the charge given by the court and move for new
be overruled. '
therefore,
disputed."
Section XXIII. The Washington case.
her wagon, which she was unable to get off the track
charge the jurt to the effect that the burden was upon
pass upon was, whether or not there was error in the charge
him, and this part of the charge proceeded upon the assump-
tion that the trailers attached to the grip car were open on
proceeded upon, that the cars attached to the grip car were
open on the south side, so that they may have been boarded
this point either way. This part of the charge bears upon
the holding upon the statutes under which the recovery in thi
vs. Whitacre 35 Ohio St,, 627, 630 ; 28 Ohio St., 340 ; and
for if his own imprudence was the moving cause,he can not
maintain his action, although the company may not have ob-
ry care and caution on the part of the driver, but the ex-
ercise of due care and caution on his own part ... "
cumbent upon him to prove such care and caution. The want
quence thereof, and his case is made out. If there are cir-
147 U.S. Rep. 571. Grand Trunk Railway Co. vs. Ives,
144 U.S. Rep. 429 ; Hough vs. Railway Co., 100 U.S.
AMIERICAN JURISDICTIONS
of Indiana.
ed supra.
vs. McDaniel, 134 Ind. 166, also follows the above hold-
ings.
by being thrown from and under the car which ran over
the case."
68 Iowa 530, the Court again laid down the principle that the
in Raymond vs. The Burlington, Cedar Rapids & Northern R'y Co.
see how the plaintiff could do more than prove what he did.
what his acts were, and they did not appear to be negligent,
rule, was not erroneous in this case, where it was clear that
in Louisiana.
Electric Light Co., 44 La. Ann. 692, the marginal note lays
the case.
pany by the surviving parents for the loss of their son run
have been the primary cause of the injury, yet an action for
ty's negligence."
show that he was in the exercise of due care when the injury
firmed."
referred to therein.
Section IV.-- The decisions in Maine.
established.
The cases of Gleason vs. Bremen, 50 Me. 222; State vs.
Grand Trunk R'y Co., 58 Maine 176, are in point and favor
cause of his own injury:" The case from which the judge
was proved, that if the plaintiff had not been riding very
hard he might have seen the obstruction and avoided it, and m
which has been made by the fault of another, and avail him-
wyn's Nisi Prius, and the principle is admitted into the text,
the course of the charge, stated that the burden of proof was
that being the gist of the case, but that when the defendants
show that the plaintiff had not used ordinary care, the rule
Smith vs. Smith, 2 Pick. 64: and the Court further said that
the burden was upon the plaintiff to show that the accident
that reason the verdict was set aside and new trial granted.
the case was tried upon the theory, on the plaintiff's part,
that the plaintiff had the burden of proving that the machine
this ; and that, if the jury were unable to decide what caused
the machine to start, she was not entitled to recover.
words : " All the circumstances under which the injury was re-
.ichigan decisions.
tion for a negligent injury, and the action of the two par-
due care, and that the other party did not. The absence of
has shown it, or until it in some way appears from the evi-
Chicago & Grand Trunk R'y Co. 51 Iich. 236, there is stated
in the wrong ; that he has performed his duties and that the
defendant has neglected his, and that the damages are the
51 ],Piss. 224.
mond and Danville R.R.Co., 8F, N.C. 502(18S3), who was an en-
cut through which the railroad ran, was piled upon the track--
the jury : "If the jury believe that the defendant was guil-
says : "It was not proper to burden the defense with the re-
moval of the presumption thus raised for the plaintiff, and
put it in the scale with the evidence on one side of the propo-
112 N.C. 743, MacRae J. giving the opinion of the Court cor-
rects His HonorBynum J. who had upon the trial before the
claims that she has been injured by the negligence of the de-
the evidence that fact, and the following fact, that she her-
AMERICAN JURISDICTIONS
freshet in the river and the water covered the causeway, flow-
ter passing over the bridge, becoming alarmed, they drove off
ady R.R.Co., 5 Barb. 337, that a party who would recover for
an injury caused by the negligence of another, must show that
ble negligence of the town, but also that the decedent con-
23 id. 339.
error assigned for appeal is, that the lower court omitted to
charge the jury that the burden of proof was on the plaintiff
tion and further says, the reason of the rule is, that the
prove this latter part, the plaintiff must show that such in-
78
fact ; and the defendant also had the benefit in the charge,
forth supra. The other grounds assigned for error being dis-
rule.
Ga. 509, the marginal note states that the fact that the em-
thrown off and killed by the car striking a cow crossing the
car. Execption was taken (and rade one of the grounds for
new trial) because the Court charged the jury that "the
remarks that upon this matter the rule has been so long set-
from the locomotive, was run over and killed. The deceased
Of the engine, and was told the defects would be speedily re-
the law does not always require positive proof of due care
usual and ordinary care for his personal safety". The criti-
the instruction.
made with a view to construct coal vaults for the use of the
the law Mr. Justice Scott said that the lower Court ought to
given state the proposition that she was bound to observe due
82
or ordinary care, but none of them declare as the law is, the
Burlin gton & Quincey R.R.Co. vs. Gregory, 58 Ill. 272. The
covered damages for the value of his horse which was killed
the Court said that where the party ceased to recover damages
he must be able to show that his own negligence has not con-
and the burden of proof is upon the plaintiff to show not only
12 Pick. 177.
over, laid down the rule, that before a plaintiff can recover
nectady R.R.Co.
So much then was necessary for the decision of the case. But
the Court further said : "It was equally necessary for the
not one of them bears directly upon the point involvedbut are
84
decided on a rather indefinite rule fashioned after the word-
the law in this behalf, and the fairest and most satisfactory
reason that was alleged, namely, that the plaintiff had failed
ting as the Court, the decision of the trial court was up-
tate had been run over and killed by a horse car of the de-
fendant moving along West Street, in the City of New York,
jury, but the absence of any fault on the part of the plain-
carry the case to the jury, the evidence must be such as,
430, the court, as authority for the holding that the great-
the defendant.'
the first time was fully and plainly committed to the rule
ion of the court there isthat-- "A party suing for negligene
fered injury."
the court, Miller J., in the case of Hart vs. Hudson River
the defendant was the sole cause of the death of the deceas-
ed. But it needs not that this be done by the positive and
direct evidence of the negligence of the defendant and of
the freedom from negligence of the deceased. The proofs may
this case it was first contended that the complaint was in-
hamton & N.Y. R.R. Co., 98 N.Y. 198, reversing 31 Hun. 397,
the same judge sitting as the court, says ; "In an action for
negligence causing death, the burden of establishing affir-
marively freedom from contributory negligence is upon the
ther held that the burden was upon the plaintiff of showing
for any other inference than one of neglect and want of care.
feet from the rails one could, in daylight, see the tracks
trial granted.
Section V.-- The Ohio Doctrine.
for the court, says : "It is only when the injury is shown
the defendant ; for when the plaintiff's own case raises the
the exercise of due care to avoid the injury, and his tes-
timony does not disclose any want of such care on his part,
both views.
ing out his defense Canal Co. vs. Bentley, 56 Pa. 30, 33.
was upheld in Phil. & Reading R.R. Co., vs. Bayer reported
Hill Vs. Town of New Haven, 37 Vt. 501. In this case the
discloses nothing but that his conduct at the time was proper
upon the court to charge that the burden was upon the plain-
tiff to show that he was exercising due care at the time the
request was not complied with, still the judgment was affirm-
ed .
CHAPTER VI.
SUMMARY
general doctrine.
or bar a recovery.
Question. Conclusion.
opinions was the result. Some held that the entire bur-
found.