Martin v. Herzog

Court of Appeals of New York, 1920.

228 N.Y. 164, 126 N.E. 814.

Prosser, pp. 218-219


Facts: The plaintiff and her husband were driving at night with their lights off and were hit by the defendant’s car coming from the opposite direction which had crossed the center line.  The plaintiff’s husband died, and they sued for negligence.  The defendant argued contributory negligence on the part of the plaintiffs in that they didn’t have their lights on.  The jury found for the plaintiff, but the appeals court overturned the verdict.  The plaintiff appealed.


Issue: Did the decedent’s conduct constitute contributory negligence?


Rule: If a party violates a statute that applies to the facts of the case, without excuse, that violation is negligence per se.  The court must declare the negligence rather than leaving it up to the jury.


Analysis: Cardozo says that the plaintiff’s husband having his lights off at night was negligent.  He says the jury should have been instructed that the plaintiff’s husband was culpable.


Conclusion: The appellate court’s decision was affirmed.


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