Opinion
May 3, 1939.
Present — Sears, P.J., Crosby, Cunningham, Taylor and Dowling, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: While the evidence is sufficient to sustain the finding of the jury that defendant was negligent in failing to give suitable warning of the presence of sewer tiles and bricks which were placed upon the grass shoulders at the edge of the traveled portion of the highway, we think that the plaintiff's failure — although it may have been inadvertent — to adduce evidence tending to prove that his vision was not wholly obscured due to weather conditions then obtaining, and that he made reasonably careful observation of existing highway conditions, compels the conclusion that the jury's finding that plaintiff was free from fault is against the weight of evidence. "It is a fundamental principle in the law of this State that, in an action for a personal injury based on negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by plaintiff either by direct proof or by circumstances, and that no presumption arises from the mere happening of an injury and proof of negligence on the part of the defendant, that the plaintiff was free from blame." ( Weston v. City of Troy, 139 N.Y. 281, 282.) The judgment and order should be reversed on the facts and a new trial granted, with costs to the appellant to abide the event, upon the ground that the proofs, by a fair preponderance thereof, fail to establish plaintiff's freedom from contributory negligence. All concur, except Sears, P.J., and Crosby, J., who dissent and vote for affirmance. (The judgment is for plaintiff in an action for damages for personal injuries and property damage to an automobile, sustained by reason of an automobile colliding with an obstruction in the street. The order denies a motion for a new trial.)