Torts I, Pages 236–237

Martin v. Herzog

Court of Appeals of New York, 1920


Plaintiff's buggy was struck by an oncoming automobile, killing her husband. The collision happened on a curve. Defendant was allegedly driving in the center of the road. Plaintiff was allegedly driving at night without lights. Defendant was no speeding, had no defects in his car, and had his lights on properly.

Procedural History:

Jury was permitted to find plaintiff's lack of lights as negligent or innocent. Jury found the defendant at fault and the plaintiff blameless.


Does violation of a statute constitute negligence when the plaintiff was also negligent?

Plaintiff's Argument:

Defendant was driving in the center of the road.

Defendant's Argument:

Plaintiff's husband was driving without his lights on.


When the plaintiff's negligence contributed to the harm, the defendant is not liable for negligence.


Plaintiff's lack of lights was negligence. This negligence was part of why the collision happened and thus plaintiff cannot recover damages from defendant.


No, the plaintiff was negligent and hence there was no liability for negligence. Order of the Appellate Division affirmed, and judgment directed in favor of the defendant, with costs in all courts.


Adds "unexcused" omission