F: The P was walking in a roadway facing away from traffic on a snowy day when the sidewalk was impassible. The D hit her. The P sued, but the D claimed that the P’s conduct constituted contributory negligence because it was a violation of statute to fail to use the sidewalk or to walk in the street facing towards traffic. The jury found for the P but the verdict was reversed on appeal. Then, P appealed
I: Whether P is liable for negligent
R: Per se Neg. may be rebutted if it can be shown that the violation is excusable or justificable.
A: The court finds that the statute that is relevant to the current case gives the jury a clear guideline for determining whether the P was negligent and whether such negligence contributed to the P’s injury. The court concludes that the jury was correctly and adequately instructed.
C: Reverses the decision of the AC and affirms the jury verdict.
5. Proof of Negligence
(1) Court and Jury: Circumstantial evidence
Burden of Proof: in negligence cases, P bears the “burden of proof.” P must prove each element by a “preponderance of the evidence.”
Weak CircumstantialEvidence(Banana Cases)
[Goddard v. Boston & Maine R.R. Co. - Man slips on banana peel on train platform. There was no evidence that the
reasonable ordinary duty of care was breached.]
[Anjoy v. Boston Elevated Railway Co. - Woman slips on banana peel on train platform. Banana peel was dark, gritty,
sandy, flattened down. Sent to jury.]
[Joye v. Great Atlantic and Pacific Tea Co. - Man slips on banana peel in supermarket. Banana was brown with dirt and
sand on it. Floor went 35 minutes without the floor being swept. D wins from lack of evidence.]
[Jasko v. F.W. Woolworth Co.- Woman slips on pizza dropped on floor. “storekeeper is allowed a reasonable time to
discover and correct the condition"]