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Cuthbertson v. Marathon Bus Co.

Decided: April 27, 1933.

ALEXANDER CUTHBERTSON, AN INFANT, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
MARATHON BUS COMPANY AND BENJAMIN SAMUEL, DEFENDANTS-APPELLANTS



On appeal from judgments of the Supreme Court.

For the defendants-appellants, Arthur T. Vanderbilt.

For the plaintiffs-respondents, McCarter & English and Gerald McLaughlin.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal brings up for review five judgments of the Supreme Court, entered on postea, after trial together of five cases at the Union Circuit with a jury.

The points argued refer entirely to alleged errors in the charge, so that extended statement of the facts is not necessary. The plaintiffs were occupants of an automobile which was standing facing south upon its right side of a public highway, and on the shoulder thereof; the Marathon Bus Company's bus, operated by another defendant, Benjamin Samuel, was proceeding northerly on the same highway on its right side of the road; an automobile driven by the third defendant, George Bayer, was proceeding in a southerly direction on said road. Bayer turned to his left across the road to enter Seidler's Beach and across the path of the bus, in consequence of which turning the bus driver turned to his left, but the bus collided with Bayer's car and then proceeded over to the far left side of the road and collided with the car in which the plaintiffs were seated. Verdicts were returned in

favor of the plaintiffs and against the three defendants. Marathon Bus Company and Benjamin Samuel appeal, and argue three grounds of appeal.

These grounds of appeal present the failure of the trial judge to charge appellant's requests Nos. 2, 3 and 9.

Request No. 2 is:

"The law never presumes negligence, in fact there is a presumption against negligence, it is therefore a fact which must be proved and I charge you that if the plaintiffs fail to satisfy you by fair preponderance of all the evidence in the case that the defendants Samuel and Marathon Bus Company were negligent, and that their negligence was the proximate cause of their injuries then your verdict must be in favor of the defendants Samuel and Marathon Bus Co."

Request No. 3 is:

"The mere happening of an accident is no evidence ...


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