Talbot v. Ginocchio

Action fob Damages—Negligent Driving of Team—Pleading and Finding of Ultimate Fact.—In an action to recover damages for personal injuries resulting from the negligent driving of a team by defendant’s servant against the person of the plaintiff, such negligence is the ultimate fact to be pleaded, and is not a legal conclusion; and a finding that “the servant and employee of the defendant in charge of said horse and wagon was driving the same carelessly and negligently” is a finding of an ultimate fact, and not upon a mixed question of law and fact, and is unobjectionable.

Id.—Support of Findings—Negligence—Contributory Negligence— Collision at Left Curb of Street—Increase of Speed—Prudence of Plaintiff.—Where there is evidence to show that plaintiff was prudently crossing the street, from the right side to the left, after looking to see if there were any teams approaching and seeing none, was about to step from the left curb to the sidewalk, when the driver of defendant’s horse and wagon approached with increasing speed on the left side of the street and struck plaintiff down and seriously injured her before she could reach the left sidewalk, it is held that the findings that the defendant’s employee was negligently driving the horse and wagon and that such negligence caused the injury, and that the plaintiff was not guilty of contributory negligence, were sufficiently supported.

Id.—Rule in Case of Conflicting Evidence or Doubt from Inference —Question of Fact.—Under the rule that, when the evidence is conflicting, or when reasonable men might differ as to the inference which ought to be drawn from the undisputed or proven facts, the question of negligence or contributory negligence is one of fact for the jury and the trial court, it is held that the appellate court cannot say that the trial court was not justified in its findings against the defendant and in favor of the plaintiff injured.