Summary
holding that the receipt by plaintiff of insurance on the life of the decedent may not be shown in a wrongful death action to reduce plaintiff's recovery
Summary of this case from Tyminski v. United StatesOpinion
Argued January 20, 1925 —
Decided March 16, 1925.
1. The fact that the deceased was struck by an electric car, in the absence of any proof from which the negligence of the motorman may be inferred, is not sufficient to send the case to the jury, in an action to recover damages under the Death act.
2. Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence.
On appeal from the Bergen County Circuit Court.
For the appellant, Alexander Simpson.
For the respondent, Joseph Coult and Leonard J. Tyman.
The suit in this case was brought to recover damages under the Death act. The plaintiff's intestate was killed on the 2d day of November, 1923, at a public highway crossing known as Division street or lane, in the town of Grantwood, Bergen county, New Jersey. The deceased was struck by an electric car of the defendant company, after which he died from the injuries. No one saw the occurrence.
There was no testimony offered from which the surrounding facts can be ascertained. There is proof only of one important fact, viz., the car hit the deceased. There is no proof of any facts from which negligence of the motorman of the trolley car may be inferred. It is elementary that negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence. McCombe v. Public Service Railway Co., 95 N.J.L. 187. The trial resulted in a nonsuit of the plaintiff. The judgment of nonsuit should be affirmed. The ruling of the trial court is in harmony with our rulings in the cases of Alvino v. Public Service Railway Co., 97 Id. 526, and Olsen v. Erie Railroad Co., 99 Id. 485.
The judgment of the Bergen Circuit Court is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, KATZENBACH, LLOYD, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 14.
For reversal — None.