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gence of deceased as to its absence, or point in neither direction, a refusal to nonsuit is error. So held in Wiwirowski v. Lake Shore &

M. S. Ry. Co., 124 N. Y. 420, 26 N. E. 1023.

Total Failure to Show Exercise of Due Care by Deceased. In an action for the death of plaintiff's intestate through the alleged negligence of defendant, if the evidence wholly fails to show that deceased was using due care, there can be no recovery. So held in Riley v. Connecticut River R. R., 135 Mass. 292, 15 Am. & Eng. R. Cas. 181.

An action to recover for the death of plaintiff's intestate, alleged to have been caused by the negligence of defendant cannot be maintained when the plaintiff wholly fails to show affirmatively, either by direct evidence, or by legitimate inference from any evidence in the case, that the intestate was in the exercise of due care, and did not negligently contribute to the injury. And absence of such proof is alone fatal to plaintiff's action. So held in Cunningham v. Bath Iron Works, 92 Me. 501, 43 Atl. 106.

Burden of Proof on Plaintiff. In an action to recover for alleged negligence causing the death of plaintiff's intestate, upon the question of contributory negligence, the court charged: "It is not enough to prove facts from which either the conclusion of negligence or the absence of negligence may with equal fairness be drawn, but the burden is upon plaintiff to satisfy you that there was no contributory negligence on the part of deceased." This was held no error. Hart v. Hudson River Bridge Co., 84 N. Y. 56.

Absence or Presence of Contributory Negligence-Evidence Balanced Nonsuit.-A nonsuit, granted on the ground that plaintiff did not show freedom from contributory negligence on the part of his intestate, alleged to have been killed through the negligence of defendant, will not be disturbed, though the circumstances point as much to absence of contributory negligence as to its presence. So held in Dorr v. McCullough (N. Y. Sup. Ct.), 40 N. Y. Supp. 806. Absence of Contributory Negligence-Verdict Founded upon Mere Conjecture. A verdict, in an action for negligently causing the death of plaintiff's decedent, founded upon mere conjecture as to the absence of contributory negligence on the part of deceased, cannot be sustained. So held in Caven v. City of Troy (N. Y. Sup. Ct.), 52 N. Y. Supp. 804.

Entire Absence of Evidence of Deceased's Conduct-One Conjecture More Probable than Another. If all the circumstances attending an accident are in evidence, the mere absence of evidence of fault on the part of the person killed may justify an inference of due care on his part; but where there is an entire absence of evidence as to what the person killed was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another in order that his administrator and next of kin may recover. There must be some evidence to show that he was in the exercise of due care. So held in Tyndale v. Old Colony R. Co., 156 Mass. 503, 31 N. E. 655, 53 Am. & Eng. R. Cas. 467.

Evidence as Consistent with Deceased's Carelessness as with His Carefulness. Where, in an action under Mass. St. 1887, c. 270, § 2,

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for causing the death of an employee, the evidence introduced is as consistent with carelessness on his part as with his exercise of due care, the plaintiff does not sustain the burden of proof, under § 1, that the deceased was in the exercise of due care and diligence at the time he was killed, and the action cannot be maintained. So held in Shea v. Boston & Maine R. R., 154 Mass. 31, 27 N. E. 672.

Evidence Must Raise Inference of Absence of Contributory Negligence. In Kane v. Whitaker (N. Y. Sup. Ct.), 54 N. Y. Supp. 85, it is held that, in an action for alleged negligence causing the death of plaintiff's intestate, plaintiff must, at least, produce evidence from which the inference of the freedom of deceased from contributory negligence can be drawn.

Where Circumstances Do Not Tend to Prove Existence of Cause of Accident Compatible with Absence of Contributory Negligence.In Tolman v. Syracuse, etc., R. Co., 98 N. Y. 198, 23 Am. & Eng. R. Cas. 313, it is held that, in an action for negligence causing death, the burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff; and while, although there were no eyewitnesses of the accident, and although its precise cause and manner of occurrence are unknown, absence of contributory negligence may be established, sufficiently to make it a question of fact for the jury, by proof of such facts and surrounding circumstances is reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of deceased, yet if the facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion therefor which is consistent with proper care and prudence, the inference of negligence is the only one to be drawn, and defendant is entitled to a nonsuit.

Crossing Accident-Absence of Contributory Negligence-Slighter Evidence Required.-In Rodrian v. New York, etc., R. Co., 125 N. Y. 526, 26 N. E. 741, it is said in the opinion: "In case of a death accident at a railroad crossing it must often happen that the circumstances immediately preceding it, and the acts and conduct of deceased are left in great obscurity. But the rules of law governing the right of recovery are the same as in other cases, although slighter evidence of compliance with the duty cast upon a plaintiff might be deemed sufficient than when the injured person was alive and competent to testify."

Positive Evidence of Due Care by Deceased Not Required-When Taken for Granted. In an action to recover for the death of plaintiff's intestate alleged to have resulted from the negligence of defendant, the law does not always require postive evidence of due care for his own safety on the part of deeeased. Under certain circumstances it may be taken for granted that he observed usual and ordinary care for his own safety. So held in Missouri Furnace Co. v. Abend, 107 Ill. 44. Negligence and Failure to Show Contributory Negligence-Prima Facie Case. The rule requiring plaintiff to prove care on the part of his intestate for his own safety only requires evidence of the facts and circumstances attending the injury, and if these show negligence

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in defendant, from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence on the part of deceased, a prima facie case for the jury is made out. So held in Illinois Cent. R. Co. v. Norwicki, 148 Ill. 29, 35 N. E. 358. Plaintiff's Burden of Proof Easily Satisfied.-In Lyman v. Boston & M. R. Co., 66 N. H. 200, 20 Atl. 976, it is said in the opinion: "From this evidence the jury might legitimately infer and find that the defendant failed to exercise due care towards deceased, and that the want of it was a cause adequate to produce the injury to him which resulted in his death. But as in an action for negligence two conditions must concur, a performance of duty by plaintiff, and a breach of duty by the defendant, a proof of a breach of duty by these defendants did not necessarily give rise to the inference of due care on the part of deceased, proof of which was essential to the plaintiff's case The rule that the burden is on the plaintiff to prove his exercise of proper care is, however, easily satisfied, and the exercise of such care may be shown by circumstantial evidence as well as by direct proof. It even may, under some circumstances, be inferred from the ordinary habits and dispositions of prudent men, and the instinct of self-preservation. Johnson v. Hudson River R. Co., 20 N. Y. 65; Northern Cent. Ry. Co. v. State, 29 Md. 420, 428, 31 Md. 357; Cleveland & Pittsburg R. Co. v. Rowan, 66 St. 393; Weiss v. Pennsylvania R. Co., 79 Pa. St. 387, Pierce, R. R. 299."

Absence of Contributory Negligence-Affirmative Proof Required— Inference Question for Jury.-In Caven v. City of Troy (N. Y. Sup. Ct.), 52 N. Y. Supp. 804, an action for alleged negligence causing the death of plaintiff's decedent, it is said in the opinion: "The doctrine is well settled that, in such an action as this, the plaintiff, to be entitled to go the jury, was compeled to show, by affirmative proof, the absence of contributory negligence. Whalem v. Citizens Light Co., 151 N. Y. 70, 45 N. E. 636; Weston v. Troy, 139 N. Y. 281, 34 N. E. 780; Kilbridge v. New York Cent., etc., R. Co., 17 App. Div. 177, 45 N. Y. Supp. 302, 306. It is true that the absence of contributory negligence may be established by circumstances or may be inferred from the character of defendant's negligence. Johnson v. Hudson River R. Co., 20 N. Y. 65. And where all the facts are before the trial court, and they are such that conclusions can be drawn therefrom, if they allow an inference of the freedom from negligence of the injured party as well as a contrary one, the case is for the jury. Chisholm v. State, 141 N. Y. 246, 36 N. E. 184."

Defective Railing-Fall From Bridge at Night-Burden of Proof on Plaintiff.-In Ryan v. Town of Bristol, 63 Conn. 26, 27 Atl. 309, it appeared that plaintiff's intestate, in crossing a bridge on foot about midnight, fell over a defective railing into the river, where his body was found the next morning. There was no eyewitness of the accident. It was held, in an action against the town, that plaintiff was bound to show that deceased was in the exercise of ordinary care.

Passenger Struck by Another Street Car While Crossing TrackAbsence of Evidence.-Without some proof of absence of contributory negligence, recovery cannot be had for the death of a person struck

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by a street car, where the deceased stepped from one street car in ample time to have crossed a parallel track and to have avoided another car coming in the opposite direction on such track, and there is absolutely no evidence as to his movements from the time of his stepping from the car to the time that he was struck. Evansville St. R. Co. v. Gentry (Ind.), 5 Am. & Eng. R. Cas., N. S., 500.

Proof of Deceased's Familiarity with Culvert.-Where the evidence showed that plaintiff's intestate lived near the culvert in a highway which caused his death and was familiar with its character and location, and no evidence was given to show that he was free from contributory negligence, there is an utter failure of proof. So held in Toledo, etc., Ry Co. v. Brannagan, 75 Ind. 490, 5 Am. & Eng. R. Cas. 630.

Burden of Showing That Deceased Was Rightfully upon Track.—In an action against a railroad company for wrongfully killing plaintiff'; intestate by running cars over him while he was crossing the track, it is incumbent on plaintiff to show by direct testimony, or by presumptions arising from facts and circumstances, that the deceased was, at the time, rightfully and not negligently or improperly upon the track. So held in Danaldson v. Mississippi & M. R. Co., 18 Iowa 280. Proof of Deceased's Knowledge of Dangerous Condition. In an action for the death of plaintiff's intestate through the alleged negligence of defendant railway company, after defendant has shown that deceased knew of the dangerous condition of the road or machinery which he aided to operate, it is then incumbent on plaintiff to show that he was in some manner justifiable in exposing himself to the danger, before he can recover. So held in Coats v. Burlington, etc., Ry. Co., 62 Iowa 486, 17 N. W. 760, 15 Am. & Eng. R. Cas. 265.

Deaf Man Struck by Street Car.-In Adams v. Boston & N. St. Ry. Co. (Mass.), 78 N. E. 117, 21 R. R. R. 70, 44 Am. & Eng. R. Cas. 70, it is held that, in action against a street railway for the death of a very deaf pedestrian struck by a car while walking along the track, the burden was on plaintiff to prove that deceased was in the exercise of due care.

Crossing Accident--Look and Listen-Obstructed View-No Signals-Matters of Conjecture. In an action under Mass. Pub. Sts. c. 112, § 212, the plaintiff is bound to show that the deceased was in the exercise of due care and that the accident happened through the negligence of the defendant or the unfitness or negligence of its servants; and an action cannot be maintained where it is only a matter of conjecture whether a person killed while attempting to drive over a crossing in front of an approaching train looked or listened, before crossing, or took any precautions to ascertain whether a train was approaching, or whether his view was obscured, or he was misled by the lack of signals or warning by the gateman. So held in Walsh v. Boston & Maine R. R., 171 Mass. 52, 50 N. E. 453.

Death of Employee Working in Hold of Vessel-Caught between Elevator and Hatch-Unnecessary Exposure to Danger.-In an action to recover for the alleged negligent killing of plaintiff's intestate, it appeared that he was in defendant's employ engaged in tiering up

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freight in hold of one of its vessels and received the injuries which caused his death, while coming up from the hold on an elevator used in the work, by being caught between the elevator and the combing of the hatch; that there was room enough upon the elevator for him to stand without being exposed to danger and there was not evidence from which it could be inferred that he used the precautions of a prudent man. At the request of plaintiff's counsel, the court charged that "if the deceased was rightfully on the elevator at the time of his injury you may assume that he received his injury in the performance of his duty and had not omitted the precautions which a prudent man would take in the presence of danger." This was held error. Riordan v. Ocean Steamship Co., 124 N. Y. 655, 26 N. E.

1027.

Fall of Experienced Employee into Tank of Hot Sugar SyrupPassageway Well Lighted-Nonsuit. In Riceman v. Havemeyer, 84 N. Y. 646, it appeared that deceased was, at the time of the accident causing his death, in the employ of defendant's assistant-engineer in their sugar refinery; that in the basement of the refinery were two rows of tanks with a flagged passageway two feet six inches wide between them; that at one point there was a gutter across this passageway a foot above it, with a block on either side to assist in getting over it; that deceased went through this passageway to examine a pump which was out of repair, and in returning fell into a tank containing hot sugar syrup, which was uncovered, receiving injuries causing his death. Deceased had been in defendant's employ for two days and had during that time been to and fro over this passageway. He had been over it five times just before the accident, and, that time, a fellow servant went over safely, just ahead of him. The passageway was well lighted. Deceased had been especially charged to be careful and not fall into the tank. It was held that plaintiff failed to show directly or inferentially that her testator was free from contributory negligence, and a refusal to nonsuit was error. Killed by Slowly Backing Train-View Unobstructed for Two Hundred Feet.-In Krauss v. Wallkill Val. R. Co. (N. Y. Sup. Ct.), 23 N. Y. Supp. 432, 69 Hun 482, it appeared that a train was backing slowly when decedent was walking across the track, there being two box cars between him and the train; and that he could see down the track two or three hundred feet. All the evidence indicated that he was guilty of negligence contributory to his death. It was held that the case should not have been submitted to the jury, as deceased's freedom from contributory negligence was not shown.

Crossing Accident-Circumstances Must Show Absence of Contributory Negligence-Evidence Balanced. Where a person has been killed at a railroad crossing and there are no witnesses of the accident, to authorize a recovery against the railroad company, the circumstances must be such as to show that the deceased exercised proper care for his own safety. And where the circumstances point just as much to negligence on his part as to its absence, or point in neither direction, a recovery cannot be had against the railroad company. So held in Cordell v. New York Cent. & H. R. R. Co., 75 N. Y. 330.

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