John Brooks Leavitt.

A code of negligence: being the law of the state of New York in respect of negligence and kindred subjects as declared by its court of last resort (from January 1, 1798, to July 1, 1902.) (1 Johns.--171 N. Y.) With references to all the cases in the Appellate division of the Supreme court from its o online

. (page 39 of 89)
Online LibraryJohn Brooks LeavittA code of negligence: being the law of the state of New York in respect of negligence and kindred subjects as declared by its court of last resort (from January 1, 1798, to July 1, 1902.) (1 Johns.--171 N. Y.) With references to all the cases in the Appellate division of the Supreme court from its o → online text (page 39 of 89)
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Barrett v. N. Y. C, etc., Co.

Magar v. Hammond

O'Hara v. City of Brooklyn.
Brush V. City of New York.

Mason v. West

Lee V. D., L. & W., etc., Co.
WiUis V. Met. St. Ry. Co. . . .

Hill V. Starin

Reilly v. Brooklyn, etc., Co.
O'Connor v. Union Ry. Co. .
Ynnkeisch v. Brooklyn, etc.
Ludeman v. Third, etc., Co. .
Verdict Set Aside.
Goldschmidt v. Met., etc., Co.
Palmer v. N. Y., etc., Co. . .
Russell V. N. Y. C, etc., Co.
Schultz V. Second, etc., Co. .
Suhrada v. Third, etc., Co. .
Reynolds v. N. Y. C, etc. . .
Pierce v. Met. St. Ry. Co. . .

O'Hare v. Keeler

Howell V. Henderson

Campbell v.* Wood

Dougherty v. King

Landrigan v. B'klyn, etc., Co.
Armstrong v. Met., etc., Co.
Casper v. Dry Dock, etc., Co.
Freedon v. N. Y. C, etc., Co.

Yaggle V. Allen

Cardonner v. Met. St. Ry..
Sellers v. Dempsey



3


363


3


448


6


609


9


105


13


393


14


515


18


177


18


185


20


591


28


62


28


246


35


321


43


615


44


474


44


476


45


225


54


532


67


176


59


12


61


40


62


624


63


332


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361


65


453


67


99


69


619


72


26


1


309


8


615


12


160


12


445


14


361


20


339


21


427


22


191


22


557


22


599


22


610


23


43


23


137


23


451


24


306


24


594


26


8


26


22



Fick V. Met. St. Ry. Co

Garvey v. N. Y., etc., Co...
McCann v. N. Y., etc., Co. . .
O'Keeflfe v. City of N. Y. . . .

Thornton v. Lennon

Vincent v. Mauterstock

Ludeman v. Third, etc., Co.
Colvin V. Brooklyn, etc., Co.

Doyle V. Albany Ry. Co

Woods V. Buflfalo R. R. Co.
Ricca V. Third Ave. R. R. Co.
Williams v. D., L. & W., etc.
Gordon v. Second, etc., Co..
Streicher v. Third, etc., Co..
Lynch v. Nassau, etc., Co...
Edall V. New Eng. R. R. Co.
Frohle v. Brooklyn, etc., Co.
Douglass V. N. Cent. Ry. Co.
Karrigan v. Ninth, etc., Co.

Black V. Second, etc., Co

Maloney v. Union Ferry Co.
Harris v. Second, etc., Co . .
Williams v. D., L. & W., etc.
Vanson v. Met. St. Ry. Co.
Smith V. Nassau, etc., Co. . .
Ehrhard v. Met. St. Ry. Co.
Watters v. J. Simmons Co. .
Cassio V. Brooklyn, etc., Co.
Mehrle v. Brooklyn, etc., Co.
Collins V. Union Ry. Co. . . .

Hudson V. Erie R. R. Co

Mulligan v. Third, etc., Co.

Cohen v. Met. St. Ry. Co. . .

aflfd. 170 N. Y. Mem.

Connor v. Koch

Walters v. Syracuse, etc., Co.
Fawdrey v. Brooklyn, etc. . .
Weigel V. Buflfalo Ry. Co...
Berger v. The Mayor, etc. .
Jarvis v. Met. St. Ry. Co. . .
Winn V. N. Y. C, etc., Co. .
McCann v. N. Y., etc., Co. .
Miller v. N. Y., etc., Co....
Williams v. D., L. & W., etc.
Fox V. Manhattan Ry. Co..
Mcaoskey v. Met. St. Ry..
Bruce v. Brooklyn, etc., Co.
Silverman v. Dry D., etc., Co.
Reed v. Met. St. Ry. Co...
Lindermann v. B'klyn, etc. .
Gray v. Brooklyn, etc., Co..



26 84

26 456

28 625

29 524

29 628

30 308
30 520
32 76
32 87

35 203

36 638
39 647
39 658

39 658

40 616

40 617

41 344
41 615
44 116
44 333
46 625
48 118

53 648

54 632

57 162

58 613

59 616
59 617

59 617

60 613

61 134
61 214
63 165

63 257

64 150
64 418

64 625

65 394
65 490
65 572

65 611

66 114

66 336

67 460

67 617

68 242

69 22
69 103
69 442
72 454



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296 A Code op Neoligbnoe. [Part I.

CHAPTER VIII.

CAUSES.

§ 222. In determining whether a person has been guilty of causa-
tive or contributory negligence, only the proximate cause of the
injury can be considered.

Or: Causa prowima non remota spectatur,

§ 223. Where it appears upon the plaintiffs evidence that the in-
jury proceeded from two causes, one of which inculpates the defend-
ant and the other does not, it is not yet settled whether the plaintiff
should be nonsuited, or whether it should be sent to the jury to
determine which was the cause.

§ 224. Intermediate causes, concurring in producing an injury, do
not operate to make a prior cause a remote one, if the injury, in
whole or in pari, would have happened without them.

Collected from the Follotoing Deoiaions, Chrouped Under these Headings:

Proximate and remote. Proximate and remote — {Continued),
In general, 2222. Travelers on highways, 2247.

Ice and snow, 2228. Owners and lessees, 2254.

Fires, 2231. Under civil damage act, 2257.

Sewage, 2237. Miscellaneous, 2260.

Master and servant, 2238. Several causes, 2267.

Carrier and passenger, 2241. Intermediate causes, 2276.

Carrier and shipper^ 2245. Nonsuit, 2278.

Proximate and remote caiues.

In General.*

2222. An injury must he caused not merely essentially but solely
by the negligence of defendant. {Grippen v. N. Y. Cent. B. R. Co.,
40 N. Y. 24.)

2223. When death is certain to result from an injury, unless pre-
vented by proper medical treatment, improper medical treatment
causing death is not to be regarded as making the former its remote
cause. (Sauter v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 50.)

2224. Where bodily injury is the result of a fright caused by the
negligence of another, such negligence cannot be considered as the



APPBTJATE

iWeher v. Third Ave. R. R. 12 612
Storey v. City of New York, 29 316
Barrett v. N. Y. C. R. R. Co. 45 225


DrvisioN.

Tait V. Buflfalo Ry. Co. . .

Groarke v. Laemmle


.. 55
.. 56


507
61



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Chap. VIIL] Causes. 297

proximate cause of such injury. (Mitchell v. Rochester Ry. Co., 151
N.Y. 107.) ^

2226. A fractured ankle bone cannot be considered as the proxi-
mate cause of death from septic pneumonia^ on the theory that a
piece of diseased bone was carried with the blood to the lungs, except
upon proof that there were manifestations of a septic condition at
the point of a fracture. (Seifter v. Brooklyn Heights R. R. Co., 169
N.Y. 254.)

2226. In determining whether the cause of an accident is proxi-
mate or remote, the same test must be applied to the conduct of both
parties. (Rider v. Syracuse Rap. T. R. R. Co., 171 N. Y. 139.)

2227. Although a person, by contributory negligence, has put him-
self in such a dangerous position that if an injury to him had imme-
diately happened he could not recover, yet if no injury does happen
on the instant and he is then injured through the neglect of the other
party to take steps to avoid further danger to him, his original negli-
gence was not the proximate cause of any injury arising from such
neglect of the other. (Green v. Met. St. Ry., 171 N. Y. 201.)

Ice and Snow.^

2228. A slight incline of a sidewalk, due to debris negligently suf-
fered by a municipality to accumulate, cannot be presumed to be the
proximate cause of a slip by a passer-by on ice covering it. (Taylor
V. City of YonJcers, 105 N. Y. 202.)

2229. When the issue is whether a person has been negligently
run over by a street car, the failure of the company to remove ice
from the street between its tracks cannot be regarded as a cause of
the injury. (Silberstein v. Hotist, W. St. & P. F. R. R. Co., 117
N. Y. 293.)

2230. The failure for several weeks to remove snow from a side-
walk is not the proximate cause of an accident from slipping on ice,
formed the night before out of slush resulting from warm weather
prevailing for several days previous. (Harrington v. City of Buffalo,
121 N. Y. 147.)

Fires.*

2231. A negligent fire on one's own land is not the proximate
cause of a fire on a neighbor's land resulting from the heat and sparks
of the first fire. (Ryan v. N. Y. Cent. R. R. Co., 35 N". Y. 210.)

2232. Where a fire is carried by visible agencies rather than by the
wind the cause is not remote. (Webb v. Rome, Water. & Og. R. R.
C0..49N. Y. 420.)

2233. The distinction in the case of a negligently kindled fire
spreading on to adjacent land, which makes the question whether it
is the proximate or remote cause of the fire on the adjacent land to
turn on the ownership thereof, is a distinction without any principle

APPELLATE DIVISION.

9 Conklin v. City of ElmJra, 11 402 1 » Scott v. King 61 61d

McCarty v. City of Lockport, 13 494 I



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298 A Code of Negligence. [Part L

to sustain it, and does not furnish the true ground for limiting the
liability of the negligent person to his next neighbor.

This proposition is without authority in its support, but is suggested
as one which must come to be held in time. Is it not absurd to say that
if the wind carries the Are over interrening land, the negligent person is
not liable to the second owner, but if the earth carries it he is? So with
the distinction between a fire running over ten acres owned by one man,
and the same ten owned by ten men. See ruling 827, also note to Hoffman
V. King, 160 N. Y. 618, in Part n.

2234. The fact that a fire reaches plaintiff's property over interven-
ing land does not make the original cause of the fire a remote cause.
{O'Neill V. N. Y., 0. & W. B. B. Co,, 115 N. Y. 579.)

2235. Where a negligently-caused fire spreads from one man's
premises to another's, and then to another's, and so on, the negligence
resulting in the first fire is not the proximate cause of the burning of
the last house. (Bead v. Nichols, 118 N. Y. 224.)

2236. Where the burning of one building, by its catching fire from
another on the same premises, is the natural and direct result of an
act which caused the burning of the first building, a recovery may
be had for the second building, as well as the first. (Frace v. N. T.,
Lake E. & W. R. R. Co., 143 N. Y. 182.)

And see chap. II, tit. IV, art IV, sub nom. Fires.

Sewage.
2237. The fact that sewage, which flowing from the mouth of a sewer
reaches plaintiff's land, must flow over intervening land, does not
operate to relieve the municipality from liability for the damages.
{Huff mire v. City of Brooklyn, 162 N. Y. 584.)

Master and Servant.*

2238. Though the control over a locomotive may be lessened be-
cause a throttle valve is defective, the defect is not the proximate
cause of an injury resulting from its not being stopped in time,
where the signal to stop was not seen by the engineer in lime, and
when seen was promptly obeyed. {Bajus v. Syr., Bing. & N. Y. R. R.
Co., 103 N. Y. 312.)

2239. Where a servant is placed in peril through the negligence
of a coservant, from which however he could extricate himself if the
master's appliance is in proper order, and because it is not he is
injured, the defective appliance is the proximate cause of the injury
rather than the ooservanf s negligence. {Lilly v. N. Y. C. £ H. R. R.
R. Co.. 107 N. Y. 566.)

2240. If a collision between two railroad trains would not have
happened had the engineer of one of them not been running at a

appellate division.

4Saim V. Johns Mfg. Co 16 252 I Dolan v. Burden Iron Co. . . 62 545

MarkB v. Rochester Ry. Co. 41 66 White v. N. Y. C. R. R, Co. 68 209

Albring v. N. Y. C. R. R. Co. 48 635 | Palcheski v. B'klyn Hts. Co. 69 440



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Chap. VIII.]



Causes.



299



forbidden rate of speed, his doing so contributed to it, so far as injury
to himself is concerned, even though the direct cause of the collision
was a mistake of a telegraph operator. {Sutherland v. Troy & Bost
R. R. Co., 125 N. Y. 737.)

Carrier and Passenger.*

2241. An explosion of a boiler on a steamboat is the proximate cause
of the death of a passenger, who is drowned, either by falling over-
board while with due care seeking a place of safety, or by rushing
overboard, unable to bear the pains of wounds and in the belief that
they are fatal. (Erickson v. Smith, 2 Abb. C. A. D. 64.)

2242. The negligence of a switchman, whereby a train is derailed,
through which injury ensues to a passenger, is the proximate cause of
the injury. (Smith v. N. Y, & Harlem R. R. Co., 19 N. Y. 127.)

2243. Injury to a passenger on a crowded ferryboat from a horse
falling, in an endeavor to step up from the boat to the bridge, is not
a remote result of the omission to lower the bridge to the level of the
boat. (Hazman v. Hob. Land & Imp. Co., 50 N. Y. 63.)

2244. High speed at which a street car is driven is not the proxi-
mate cause of an injury to a passenger, resulting from the unexpected
act of a driver of a vehicle on the other track in suddenly turning out
of it when abreast of the car. {Alexander v. Rochester C. & B. R. R.
Co., 128 N. Y. 13; second appeal 144 K Y. 636.)

Carrier and Shipper.®

2245. A sudden gust of wind diverting the course of a distant fire
so as to drive the flames in the direction of and upon goods in transit
is not to be considered as an act of God which excuses the carrier for
their loss. {Miller v. Steam Navig. Co., 10 N. Y. 431.)

2246. Where lumber has been safely transported on a flat car, par-
tially unloaded, and left in an insecure condition over night, the
fact that a flat car was used rather than a regular lumber car is not
the proximate cause of an accident resulting from the lumber being
blown on the main track. {N. Y., Lake Erie <Sc W. R. R. Co. v. At-
lantic Ref. Co., 129 N. Y. 697.)

Travelers on Highways.'^

2247. The negligence of a parent of a child in allowing it to escape
from his custody is not a proximate cause of an injury to the child



APPELLATE DIVISION.



6 Boentgen v. N. Y., etc., Co. 36 480

Cash V. N. Y. C. R. R. Co. . 56 473

Pratt V. Greenwich, etc., Co. 57 628

Fay V. Met. St. Ry. Co 62 51

Johnson v. BTclyn Hts. Co.. 63 374

Wolf V. Third Ave. R. R. Co. 67 605

« Harrison v. Weir 71 248

7 Hurley v. N. Y., etc., Co.. . 13 167

Purcell V. Lauer 14 33



White V. The Mayor, etc. . .
McKeon v. Steinway R. Co.
Lynch v. Nassau E. R. R. . .
Williams v. Koehler & Co. . .
Porcella v. Mut. R. F. L. A.

Leeds v. N. Y. TeL Co

Bruss V. Met. St. Ry. Co. . .
Seletsky v. Third Ave. R. R.
Lampman v. N. Y. C. R. R«



15
20
40
41
60
64
66
69
72



440
601
616
426

158
484

554
27

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300 A Code of Negligence. [Part !•

during such escape, where it has gotten into the custody of another
person. (Bahrenburgh v. Brooklyn City, H. P. & P. P. B, B. Co., 56
N. Y. 652.)

2248. The fact that a driver of a runaway horse, in trying to stop
him, causes him to deflect from his course, whereby he runs over a
passer-by, whom he would not have run over unless so deflected, does
not operate to make the cause of the runaway a remote cause in pro-
ducing that particular injury. (Lowery v. ManJiattan BaUway Co,,
99 N. Y. 158.)

2249. The omission of an engineer to sound the statutory signals
on his engine, when near a crossing, is not the cause of an injury to
an escaped infant, where the situation is such that the signals, if
soimded, would not have directed the attention of its custodian to its
danger. (Chrystal v. Troy & Boston B. B. Co., 124 N. Y. 519.)

2250. Absence of a headlight on a locomotive is not the proximate
cause of an accident to a passer-by at a crossing, if the train is visible
without it. (Daniels v. Staten Island B. T. B. B. Co., 125 K Y. 407.)

2251. The negligence of the State in leaving an opening in its
bridge unguarded, so that a child may fall through, is the proximate
cause of the death of its parent, who is drowned upon plunging in to
save it. (Oibney v. The State, 137 N. Y. 1.)

2252. Escaping steam from a locomotive, standing in part on the
highway, is not the proximate cause of an injury by a horse frightened
thereby to a person who, on crossing the tracks, inclines his way so
as to cross the highway and thus gets in the way of the running horse.
(Scaggs v. Pres. Del & Bui. C. Co., 145 N. Y. 201.)

2253. The negligence of a person in attempting to drive across a
track in front of a rapidly-approaching car is the proximate cause of
an injury resulting from a collision, even though the injury did not
occur at the moment of collision, but only after the car had pushed
the wagon along the track for some distance, through the neglect of
its motorman to stop it as soon as he might have done. (Bider v.
Syracuse Bap. T. B, B. Co., 171 N. Y. 139. See Green v. Met. St.
By. Co., infra, under Intermediate.)

Owners or Lessees.

2254. Negligence of a houseowner causing a leak in his gas pipe
is not the proximate cause of an explosion caused by lighting a match
during an investigation as to the whereabouts of the leak. (Lannen
V. Albany Oas Light Co., 44 N. Y. 459.)

2255. The failure of the owner of a building to comply with the
Building Law of New York city and provide proper railing for guard-
ing the shaft when the elevator is not in use is not the proximate
cause of an injury due to a fall down the shaft while it is being used.
{Malloy V. N. Y. Beal Estate Assn., 156 N. Y. 205.)

2256. The mere use by an advertiser of a signboard, which use
does not weaken its fastenings, is not the proximate cause of an in-
jury resulting from a fall of the signboard, which is due to insuffi-
cient fastening. (Beynolds v. Van Beuren, 155 N. Y. 120.)



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Chap. VIII.]



Causes.



301



Under Civil Damage Act.

2257. Under the Civil Damage Act it is immaterial that the act
of the intoxicated person which causes the injury to the plaintifE was
not an expectable consequence of the intoxication. {Neu v. Mc-
Kechnie, 95 N. Y. 632.)

2258. Where intoxication of a person results in an injury specified
in the Civil Damage Act, the sale of any liquor which contributes in
the slightest degree to such intoxication is, under that act, the proxi-
mate cause of the injury. (Hall v. Oermain, 131 N". Y. 536.)

2259. The sale of liquor to one person is not the proximate cause
of intoxication of another person to whom the former gives it.
(Dudley v. Parker, 132 N. Y. 386.)

Miscellaneous.®

2260. The negligence of a county clerk in failing to return a lien
by judgment on a search is not the proximate cause of damages arising
from a sale of the properi;y under the lien sufiEered to take place
through ignorance of its existence. (Kimball v. Connolly, 2 Abb. C.
A. D. 504.)

2261. The negligent act of a vendor of a poisonous drug in mis-
naming it on its label is the proximate cause of injury to a person who
buys it from an intermediate vendor. (Thomas v. Winchester, 6 N.
Y. 397.)

2262. Keeping a bawdy-house is not the proximate cause of its
destruction by the " virinious citizens.^' (Ely v. Board of Supervisors,
36 N. Y. 297.)

2263. When work is being done by a contractor under contract,
the other pari;y agreeing to furnish the necessary appliances, a de-
ficiency in the number of appliances is not the proximate cause of
an accident which is due to a negligent use of the appliances occa-
sioned by such deficiency. (Hofnagel v. N. Y. C. & H. R. R. fi.
Co., 55 N. Y. 608.)

2264. The negligence of a telegraph company in delivering a tele-
graphic request for a loan of $500 as a request for $5,000 is not the



APPELLATE



Coupling Cars,

8 Hope V. Fall Brook, etc.. 3 70

McFarland v. N. Y. C. R. R. 9 628

FaU of Article.

Shields V. Robins 3 582

Steiker v. Plath 19 376

Monahan v. Eidlitz 59 224

Ice and Snow.

Hawley v. Gloversville 4 343

Macauley v. Schneider 9 279

Question of Law.

Beetz V. City of Brooklyn. . 10 382



DIVISION.

Illness from Wetting.
Stephen v. Woodniflf 18 625

Driving off Trespassers.
Marks v. Rochester Ry. Co. 41 66

Horses.
McGrath v. Third Ave., etc. 9 141
Mills V. Bunle 59 39

Moving Vessel.
Trapp V. McClellan 68 362

Start of Car.
lindermann v. B'kljn, etc.. 69 442



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302



A Code of Negligence.



[Part I.



proximate cause of a loss of the money by the receiver of the mes-
sage, whose compliance with the request as received results in so
great a strain on the borrower's honesty that he absconds. {Lowery v.
^Yest Union Teh Co,, 60 N. Y. 198.)

2265. The negligence of a telegraph company in erroneously trans-
mitting a message, which, as delivered to it, is an unintelligible jar-
gon, is not the proximate cause of a loss occasioned by the receiver of
the message acting upon his own interpretation as to what it means.
{Hart V. Direct U, S. Cable Co., 86 N. Y. 633.)

2266. The proximate cause of an injury to one of several persons
engaged in moving a safe from an elevator, resulting from an upset
of the safe due to the car rising as the safe goes off, is the omission
of the safe movers themselves to place sufficient supports under the
car across the shaft, so that it can be held up without the aid of the
motive power. {Murphy v. Hayes, 145 N. Y. 370.)

Soveral causes.^

2267. When two causes combine to produce an injury, both proxi-
mate, the one culpable, the other not, the defendant is not liable unless
it appears that the injury would not have been sustained but for the
culpable cause. {Ring v. City of Cohoes, 77 N. Y. 83.)

2268. Rule in Ring case, as to two causes applied. {Phillips v.
N. r. (7. £ H. R. R. R. Co,, 127 N. Y. 657.)

2269. Damage occurring through the sudden unmanageablenesB
of one's horse, caused by the unheralded approach of a train shooting
out of a cut near a crossing is to be deemed due to the neglect to give
the signals rather than to the conduct of the animal. {Cosgrove v.
N. F. Cent. & H. R. R. R. Co., 87 N. Y. 88.)

2270. Where an injury results from one of two causes, one of
which inculpates and the other exculpates the defendant, it is for the
jury to say which is the producing cause. {Durkin v. Sharp, as Re-
ceiver, 88 N. Y. 225.)

2271. Where an accident may have hannened from one of two
causes, as to only one of which negligence can be predicated, and
there is no proof as to which was the cause, the plaintiff shotdd be
nonsuited. {Searles v. Manhattan Railway Co., 101 N. Y. 661.)

2272. Where an injury may have come from one of two causes,
one of which is inculpatory and the other is exculpatory of defendant,
it is for the jury to say which was the cause. {Seeley v. N. Y. Cent.
& H. R. R. R. Co., 102 N. Y. 719.)



APPELLATE DIVISION.



ftMcInemey v. Elmira 11 354

Hanrahan v. Blclyn, etc., Co. 17 588

Yaggle v. Allen 24 594

Scandell v. Col. Cons. Co... 50 612

Schermerhom v. N. Y., etc. 33 17

Hosford V. N. Y. C. R. R. Co. 39 327

aflfd. 161 N. Y. 660.



43
45



Halstead v. Vil. of Warsaw.
Larkin v. Wash. Mills Co. . .

Wyman v. Orr 47

Leeds v. N. Y. Tel. Co. . . . 64
Graham v. Poughkeepsie. . .



68



39

6

136

484

262



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Chap. VIII.]



Causes.



303



2273. When, upon the evidence, an injury may have occurred
from one of several causes, only one of which inculpates the defend-
ant, a plaintiff should he nonsuited, if he does not give evidence to
negative each of the others as the producing cause. {Dobbins v.
Brown, 119 N. Y. 188.)

2274. Rule in Searles v. Manhattan R. R. Co., 101 N. Y. 661, ap-
plied. {Grant v. Penn. £ N. Y. Canal & R, R. Co., 133 N. Y. 657.)

2275. Where a plaintiff seeks to recover upon two grounds, one of
negligence for breach of a general duty, the other for breach of a
special contract, and it is left to a jury to find a verdict on either
ground, and it does not appear from the record on which ground a
verdict for the plaintiff was based, the judgment must be reversed,
unless both grounds can be sustained. {McCaidin v. ParJce, 142 N.
Y. 964:.)

Intermediate.^^

2276. Where an injury would have been the result of negligence,
without the aid of an intermediate concurring cause, the existence
of such an intermediate cause does not operate to make the first
cause a remote one. {Pollett v. Long, 56 N. Y. 200.)

2277. Negligence which contributes to a dangerous position is not
the proximate cause of an injury resulting from the neglect of an-
other to take reasonable steps within his power to save the other from
the consequences of such position. {Green v. Met. 8t. Ry. Co., 171
N. Y. 201. See Rider v. Syracuse R. T. Co., supra, under Travelers
on Highways.)

Nonsuit.^^

2278. Where a plaintiff's evidence does not show affirmatively a
want of care on the part of an injured person, and is quite consistent
with due care, it is error to nonsuit. {Galvin v. The Mayor, 112 N.
Y. 223.)

See chap. IX, Practice, sub nom. Nonsuit.

CROSS-RBFERENCESS.

See chap. IV, Questions of Fact; chap. VII, Evidence, sub nom.
Burden of Proof, Presumptions, Inferences, Conflict of Evidence,
Miscellaneous Rulings; chap. IX, Practice, sub nom. Nonsuit; also
chap. X, sub nom. Statutory Duties.



APPELLATE DrVISION.



10 Prussak v. Hutton 30 66

Turner v. Nassau El. R. R. 41 213

Preiser v. Wielandt 48 669

Craig v. Laflin & Rand Co. 55 49



Online LibraryJohn Brooks LeavittA code of negligence: being the law of the state of New York in respect of negligence and kindred subjects as declared by its court of last resort (from January 1, 1798, to July 1, 1902.) (1 Johns.--171 N. Y.) With references to all the cases in the Appellate division of the Supreme court from its o → online text (page 39 of 89)