Mora v. Favilla

I concur in the judgment.

In view of the circumstances of this case defendant was entitled to have it very clearly made known to the jury that, notwithstanding his violation of the ordinance with the result that he was guilty of negligence, the plaintiff could not recover unless such negligence was the proximate cause of the injury. The situation was such that the jury might reasonably have concluded that the fall of plaintiff was not due to the wetting of the sidewalk by defendant. The trial court did in one place tell the jury in general language that plaintiff *Page 211 could not recover unless defendant's violation of the ordinance "directly contributed to the plaintiff's injury," but taking the charge as a whole, in my opinion it did not so clearly present the matter with relation to the facts of this case as to make it entirely plain that it was essential to plaintiff's case for him to establish by a preponderance of the evidence that his fall was caused by defendant's violation of the ordinance. Under the circumstances certain instructions requested by him on this subject should have been given, viz.: Defendant's requested instructions Nos. 9, 11, and 14.

I think, too, that certain requested instructions going to the question of contributory negligence should have been given, and concur in what is said by Mr. Justice Sloane on this point.

The case is, to my mind, a close one in the facts, and I cannot regard the matters to which I have referred as unsubstantial.

It does not seem to me that the evidence was such as to afford support for a conclusion that there was any sufficient justification or excuse for defendant's violation of this ordinance. Certainly, the fact, that the sidewalk was very "dirty" would not be sufficient to do this, and the theory that it was suddenly discovered to be so "greasy" as to be dangerous to pedestrians unless cold water from a hose was at once applied appears to me to be so insufficiently supported by substantial evidence as not to be worthy of serious consideration. In so far as this phase of the case is concerned, I do not think there was any error on the part of the trial court. But on account of the other matters to which I have referred I concur in the judgment.

Lawlor, J., concurred. *Page 212