1L Law Source

Heading: Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920) p63.

Facts: - On the night of August 21, 1915, plaintiff and her husband were driving toward Tarrytown in a buggy and were struck by the defendant’s automobile coming in the opposite direction.

The car was rounding the curve when the buggy emerged from the gloom.
Negligence is charged to the D in that he did not keep to the right of the center of the highway.
Negligence is charged against P in that he was traveling without lights.
D wanted jury to be instructed that P was contributorily negligent. Judge only instructed there may be some negligence.
The jury was instructed to treat the absence of lights as some evidence of negligence.

Procedure: The jury found D guilty of negligence and the victim blameless. The Appellate division reversed and ordered a new trial based on error in charging the jury.

Issue: Was the instruction to the jury that they were to consider the absence of light as some evidence of negligence incorrect?

Rule: When a party breaks the law, the jury must be informed of that. It should not be up to the jury to decided issues which are straight forward and obvious.

Holding: The absence of light on a vehicle is negligence in itself. It is more than some evidence of negligence.

Rationale: There is an admitted violation of the statute, yet jurors are told to consider the omission of lights either as innocent or as culpable. No license should have been conceded to the triers of the facts to find anything else but the omission of lights a wrong.

Policy/Notes: Statutory violation is negligence per se. Negligence in itself. No jury question about duty and breach of duty now. Need to have statutes that apply in situations. Violation of a statute is evidence only. Jury can decide if there was due care or not.