La Sance v. Casey

WASTE, C. J.

This action, instituted by plaintiff’s testate, Christopher J. La Sanee [hereinafter referred to as the plaintiff or respondent], for damages for personal injuries received by him when struck by defendant’s automobile, resulted in a verdict and judgment for $9,000 in favor of plaintiff. Defendant appeals.

An extended statement of the facts of the Case is unnecessary. It is sufficient to say that plaintiff and his wife had alighted from a street-car at a transfer point, and were standing on a “safety station” awaiting the arrival of the ear to which they intended to transfer; and that defendant, in changing the course of his automobile, made a turn in such manner that the front wheel of his car could not clear the safety station, but was carried over the curbing, the bumper of the automobile striking plaintiff and throwing him to the ground, causing the injuries which form the basis of this action. Defendant contended at the trial that he was not negligent in operating his automobile, but that the brake on the right wheel dragged and interfered with the turn, causing the car to swerve over the curbing of the safety station. He charged the plaintiff with being eontributorily negligent. The only errors urged as grounds for reversal relate to the giving of certain instructions and

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the refusal of the court to give other instructions requested by the defendant.

Appellant’s objections to the instructions of the court with reference to the burden of proof, preponderance of evidence,

prima facie

negligence, and contradictory evidence are without merit. These instructions, read as a whole, appear to be full, clear, and, in our opinion, quite fair to appellant.

The court stated the law as to the necessity for adequate brakes on a motor vehicle operated on the public highway. Appellant urges that this instruction implied that there may have been some evidence that there was undue delay in stopping his machine and that the giving of this instruction, without any qualification as to appellant’s lack of knowledge of the defect in his brake, “led them [the jury] to believe that the appellant was an insurer of his brakes and to believe that this law applied to brakes which worked unevenly as well as to brakes inadequate to stop the machine”, and was clearly erroneous. He also complains of the refusal of the court to give his requested instruction as to unavoidable accident. The court, however, did state to the jury that the mere fact that an accident occurred did not, of itself, raise any presumption that defendant was careless, or negligent in driving his car. Furthermore, instruction X, which was decidedly favorable to appellant, fully answers both of the objections raised by him. It reads: “If you find that the defendant Casey was driving his automobile with ordinary care and prudence, and if you also find that the accident was entirely due to the fact that one of the brakes on the automobile dragged and thereby caused Mr. Casey to run the automobile upon the safety station; and if you further find that Mr. Casey was not careless or negligent in any manner, then he is exonerated from any liability in this case and your verdict must be in his favor.”