*1 By. Angеles Green v. April, 1904.] grant for trial a denying a motion a new was below court effectually if had in the court words trial as below new granting trial. a new made the order the order reversed.
It advised C., Gray, C., concurred. Chipman, foregoing the order given reasons For the reversed. appealed from is McFarland, Lorigan, J., J.
Henshaw, J., April 13,1904.] [L. No. In Bank. A. 1056. TERMINAL Respondent, ANGELES GREEN, v. LOS
JOSEPH Appellant. COMPANY, RA ILWAY Company—Contribu- Death—Negligence of Bailroad Action fob tory Negligence and Listen.— to Look of Deceased—Failure wife, which, notwith- an death of action defendant, a steam-rail- standing proof of the city running in a a rate between its train at road company, hour, failing give twenty-five thirty miles deceased, customary signals, appeared from the evidence that faculties, slowly from a possession in full of her advanced whilе thirty track, seen, where train was feet no distance angle thirty degrees along path led at an across a partly track with her turned stepped face train, plainly away approaching which was visible at feet, she eight hundred and which would have seen distance of listened, her injury if had looked and failure to escaped she law, pre- contributory negligence as matter of so was do recovery. cluded Negligence Acts.—The of Defendant—Concurrent Id.—Wanton notwithstanding plain- that,' responsible if tiff, defendant is still he of wanton might with reasonable care have negligence, when avoided the discovery plaintiff’s danger, application has no equally guilty parties negli- concurrent both acts where at the when the of which time gence, each accident occurred it. contributed Engineer—Presumptions.—The Duty Id.—Bights engineer presume person seen safety had Green v. Los in possession faculties, recklessly of natural and would not directly move in front re- and was not quired stop or check the train to ascertain whether such so; was about to do and the did giving his whole *2 the alarm trying stop the train as soon as the was step seen to though unavailing. effort such judgment APPEAL Superior from a Los Court of Angeles County and from an denying order trial. a new Judge. M. T. Allen,
The facts are stated in the of the court. Gibbon, & Thomas A. Halstead, Halstead, and Goodrich S. McCutchen, Appellant. &
The negligence of Green Bessie was a direct proximate death; precluded recovery, cause her (Dufour Co., matter of law. v. Central R. R. Pacific 319; Long Co., 67 Coronado R. R. Cal. v. 96 Jami 269; Cal. Co., 593; Flemming son v. San Jose etc. R. R. 55 Cal. v. West Co., ern R. R. Trousclair v. Coast 253; 49 Cal. Pacifiс Pacific Co., 521; Hager S. S. Co., v. Southern 80 Cal. 98 Cal. Pacific Co., 161; Pepper Holmes v. 309; Southern Pacific 97 Cal. Ry. Co., v. South Glascock v. Central 397; C. 105 Cal. Pacific 137; Bennett, Co., R. R. Clark v. 278; 73 123 Cal. Cal. Pacific Bailey Market- Herbert v. Co., Southern Pacific 230; 121 Cal. v. Ry. R. Kenna v. Central Pac. R. 110 Co., Street C. 328; Cal. Niosi v. Co., Empire Laundry, 101 Steam Cal. 117 Cal. 29; Co., 115 Angeles Ry. Green Everett v. Los 257; 105; Cal. etc. Ry. Co., 138 Cal. 1; v. Southern Beach on Con California Houston, Railroad Co. v. 452; 95 tributory Negligence, sec. Ry. Co., 114 615; Chicago etc. 697; v. U. S. U. S. Schofield Ry. Co., 245; Blount v. Chicago etc. Grand Elliott v. 150 U. S. Ry. Georgia Ry. Co., Central Co. v. Trunk 375; Fed. 61 Ry. Chicago Forshee, Co., etc. 199; Ill. Sala v. 85 125 Ala. Ry. Neubeur, 399; 62 Maryland Co. v. Md. Central 678; Carring Supp. 350, Co., R. 353; N. Y. Hudson v. Erie R. 70 472; Neal v. Ry Co., Gillette, etc. ton v. Louisville 88 Ala. no of “last clear chance” has 437.) doctrine 23 Conn. negligence of case, parties both where the application to this (Thоmpson on time the accident. concurrent at Ry. Coast Holmes v. South 176; Negligence, sec. Pacific Ry. 33 Angeles April, 1994.] Queen etc. v. Los Co., Co., Sego Cal. Southern Pacific 97 v. 137 161, 167; Cal. Ry. 128; Co., Everett v. Los 115
105; 127, Cal. R. McGlinchy, and S.
O’Brien Smith Norfolk 55; v. 68 Me. v. Ry. Co., Kirtley Chicago Co., 114 N. v. 65 Fed. C. 728; Ry. 344; 391; Guyer Co., Missouri 389, 174 Mo. v. Pacific Ry. 250; Murphy City Co., Watson v. Mound Street 133 Mo. 455;1 Co., Dean, Syracuse Rap. ider Trans. 101 v. Mass. v. R 139.) negligence of en 171 N. Y. was no wanton There foot-passenger who had gineer, to assume that (Beach step in would not be reckless and of the train. front Southern Contributory Negligence, v. 394; see. Ry. Co., Holmes v. Coast 563; 122 Cal. South Pacific Pacific Angeles Ry. Co., Co., 97 Cal. v. 161; 119; 115 Everett Miller, Ry. 490; Gahagan v. Cleveland v. 149 Ind. Co., Guyer etc. R. R. Missouri
Boston 70 H. 441; N. v. Ry. Co., Frazer South etc. R. R. Mo. 81 344; Ala.
185; Maryland Neubeur, Co. Central 391, 399; 62 Md. *3 Miller, Lake Shore v. R. 30 N. Co., 188; v. N. R. J. L. Telfer Boyd Ry. Co., 105 371; v. Wabash Western 379; 25 Mich. Mo. Co., Ry. Jackson
McNab v. United etc. v. Kansas 719; 94 Md. Ry.
City Co., etc. 621.3) 157 Mo. Meserve, Respondent. Ling, A. E. A. for R. and injury, The not use due care to avoid did having power testified; as he and on so, to do the whole negligence contributory negli questions facts, the (Judson v. Central Vermont jury. for the questions gence were Co., Co., Ry. Driscoll v. Cable 597; N. Y. R . 158 R. Bennett, Fox 123 v. 567 Clark 278; v. Cal. ;4 97 Cal. 55; Co., Philadelphia Link v. Ry. 118 St. Cons. Cal. Oakland 5 Co., Esrey Co., 165 Pa. St. v. Southern 75; R. R. Pacific Angeles R. R. 541; Cunningham Co., 115 v. Los 103 Cal. Ry. Oregon Co., 40 Or. Southern Pa 6; Hecker 561; v.
Cal. 379-381.) foot-passenger The Hereda, 109 Fed. v. Co. cific customary signals danger. rely had the Co., R. R. (Iowa) N. 505; 94 W. Illinois Central (Defrieze v. Co., etc. Woehrle 150; 66 Lake Mich. Shore
Gugenheim v. Pennsylvania Ry. Co., 165; 82 Minn. T. R. Minnesota v. Rep. Am. St. 4 33 5 203. Rep. 390. Am.
1 3 2 Rep. Am. St. 62 216. Rep. 145. Am. 60 3 Rep. 650. St. Am. 80 Cal—3 CXLIII. 34 Ry. Green 71;1 Ogier, v. 35 Pa. St. Smith v. Boston R. R. ;2
N. H. 53 Orcott Coast 291.) Co., Cal. This action, LORIGAN, J. brought by plaintiff to re damages cover wife, the death of alleged to have been through negligent occasioned operation of а locomotive train of employees cars of defendant, within corporate city limits of Angeles. of Los case tried the court without jury, judg- ment rendered in favor of for five thousand dollars. appeal judgment This is from the and from order deny- ing motion defendant’s for a new trial.
These subsequently were both this affirmed court in but, Bank, rehearing having been granted, the matter is again disposition. now before us for In judgment, point our the sole involved is whether the plaintiff’s guilty contributory intestate of such negli- gence precludes recovery by as think plaintiff, we fully presented, disposed of, this and is to be under findings of the lower court made in the case. fully This opinion matter was discussed the former to, considering general of this court above referred court, lower wife had used ordi- had prudence, care and not been nаry careless- contributory accident in ness which she lost her life. entirely expressed satisfied with the views there
We applied upon the doctrine of finding, readopt them. respect declared:— *4 though sharply conflicting, evidence, “The is sufficient to superior findings of court, train, support moving, considering locality, at the time of the acci-_ was dangerous excessively high speed and rate of an dent, at thirty twenty-five hour), upon miles an and a (between making steam, noise, without but little and descending grade, customary any statutory giving signals, without bell. whistle, ringing or its But neither the sounding its by findings specific of court sustain nor the evidence ap- wife in finding effect general more Rep. 2 85 Am. St. 594. Am. Dec. 322. 1 78 By. Green was preaching defendant, the track she of at the where ordinary ordinary an killed, care, used and did that which circumstanсes, prudent person .would have done under the any or carelessness, and did not her own deceased injury. wise contribute to said accident possession full age, woman of good mature health, all of defendant approached of her faculties. She plainly foot and it was daylight, point at a from which eastward, eight visible of feet hundred distance thirty- beyond When it made north. which a curve to the feet towards distant from the track to look she was seen along path east and then immediately advance angle degrees. crossed the track As the track thirty at of nearly west, extended east and and her course was from' southeast northwest, this caused her face be turned away partly from the which was from the east. It is to be inferred when she looked towards the east thirty feet distant from train had not rounded the curve out view, slowly she advanced along again path, looking without up, and when of stepping act on the track was struck by the locomotive killed.
“Under these clear, circumstances it is in view of numer ous decisions of great weight this court, au thority elsewhere, acquitted that she culpable cannot be negligence directly contributing to the fatal result. it is While ordinarily true that question fact, it is, cases, some a conclusion of law. In the case of Herbert v. Co., 121 Southern Temple, Justice. deliver ing court, laying down the rule, exception stated the as follows:— “ arising injuries ‘But cases suffered at railroad crossings have so numerous, been points certain there has been such absolute accord, that what will constitute ordinary care such a case has precisеly been defined, and if element is the courts will wanting, hold, as matter of law, plaintiff guilty that the has negligence. been And might results have been avoided of proper care, use cannot recover, although has also negligence. defendant been special care, ease the amount well as the nature it, has been *5 By. Angeles Green v. Los settled.’ To illustrate this view proceeds, he as follows: ‘The railroad track of railway a steam must itself be re- garded sign danger, as intending and one to cross must every avail himself of opportunity to look and listen for approaching trains. he What must do in such a case must depend upon circumstances. If the view of the track is ob- structed, greater should pains he take to listen. If, taking these precautions, would have seen approach- or heard the ing train, fact of presumption will raise required that he did not take precaution.’ language quoted, “The here from one of own decisions, our applicable strictly present case. If wife precaution look, had taken and had availed herself of every opportunity to look she had for train, obliged she need not injured, have been and we are not any presumption to resort to establish her failure to take the required precaution, findings for the evidence and the show looking along that after the track once, toward the east when thirty therefrom, she feet again, distant she did not look turning but, opposite direction, her face in walked so coming slowly beyond point from a her view eight looked, at time she could travel over hundred feet covering thirty feеt between her while she only and the rail of the observation nearest track. answer negligence respondent per to the claim that this was se precaution entirely took would have been is, that she running not at if the train been a reckless rate sufficient had and that to assume that she had it would speed, proper argument But at a lawful and rate. only move case, Judge Temple, the Herbert where also is answered says: commenting on a similar ‘The contention, defense of implies contributory negligence that defendant justify recovery of such would guilty been ’ if not also in is, he were default. There by plaintiff, application words, no for the occasion rule as to other except in cases it is where shown or defendant has been actionable assumed shown, When such he is negligence. any liability, only free from alone reason proof to exonerate himself occasion has he is shown part plaintiff. contributory negligence It is no Green *6 therefore, excuse, wife the train was run ning proper point. faster than was at that There was no law restricting speed any particular rate, ordinance its to and if, judge concluded, speed was, as the trial under reasonably a circumstances, person careful excessive, would guarded negli consequences have himself from the of such gence easy simple precaution looking, and pass position safety position to about a to a danger. foot, possession A on of all his faculties, in complete movements, stepping and control of own immediately track in front railroad of a train which has been moving eight speed thirty hundred feet at less than clearly negligence. miles in full hour, view, is Upon Ry. the case of Holmes v. South Coast authority. 167, 97 is conclusive Co., Cal. was said: There 'A upon constantly railroad which trains are run is warning any person years itself a to who has reached of dis cretion, possessed ordinary intelligence, and who enough it, it is not safe to or near it, walk to be passing struck train without the exercise of constant vigilance, approach to be aware of the order made of a receiving locomotive, injury; and thus be enabled to avoid person, failure of such so situated with reference to such care and watchfulness, the railroad exercise danger use all his senses order to avoid and to make negligence per situation is This state incident tо such a se. years per se, ago,
ment of doctrine made ten courts, several decisions of this and other based Haven, of Justice and the rule has cited De recent cases applied in a of more decided here. been number Co., 227; (See Bailey Cal. Herbert v. Southern Pacific Ry. Co., 329; 110 Cal. Lee v. Market-Street v. Market-Street 295; Ry. Co., 135 Green v. Southern Cal. California Ry. Co., 138 1; Warren v. Southern Cal. 138 Cal. California cited.) cases has fre- same doctrine been jurisdictions the “In other closely resembling present. in cases quently applied counsel, in the briefs of been cited decisions have These ,it but we will unnecessary repeat here, the citations in- judges in one or two by language used quote substantially same facts a state of discussing stances before us. we as those which Ey. Green
‘ ' Commenting upоn a injured case in which had party looked for an train when some distance from again track and looking, had then driven "onwithout supreme says: Jersey court of New ‘If risk is in a inherent continuing state things, exercise reasonable care is continuing obligation. This true, at least must be that a man is negligent attempts who railroad to drive across a line listening looking only quarter once toward a which a train if these acts of approach, attention performed observation are when the so observer is far crossing from the coming will before he reach it a train from that open quarter, to his further attention and observation, has time so endanger advance as to him.’ *7 citing After several decisions to same the effect the court proceeds: ‘These opinions persons show that who cross rail tracks, road either on foot or vehicles, strictly in held to duty the of careful observation and attention. In each of these injured the notwithstanding eases was some part. judgment care on his In each case nonsuit was sustained. each case the in defect cause of though action the was, same. The defect he exer cised first, care at he did not continue to be but be careful, surroundings came to his inattentive before he reached a safety.’ (Winter New York Co., v. etc. R. R. 677.) J.N. L. Georgia Ry. “In v. 125 Ala. Forshee, Central says: supreme equally clear, court of Alabama ‘It is
the duty principle authority, performed and must be place, particular with at such time and reference to situ case as will enable the accomplish each traveler to ation purpоse imposition has view its upon law him. track, stop survey by sight so near and his He must immediately precede his must so and sound to cross effort injection preclude danger of an element it, as to over trains into the situation between the time attempt and his listened, proceed and stopped, looked, he stops railway If he so far from the as that the track. across point, be seen could and train, which could crossing by time has he traversed inter reach does track, he gotten negligently on the con vening and distance resulting injury, collision tributes to same By. v. lingers though there after stop track, is at the he true he if, delays crossing a train not looking listening, until sight has hearing looked, and listened when he stopped, he with him when scene, come and collides meantime attempt to cross.’ does duty speаking of of New appeals “The court York, ‘ sure, says: To
of a about to cross railroad be give specified requires company railroad statute ex- nor away a man’s senses warnings, but neither takes danger may using there; him from them. cuses certainly safe. precaution simple. stop, To pause, very road puts in the His do so is himself time to before ’ (Wilds R. 24 N. casualty. Hudson River R. Y.
430.) says: 'We are unable supreme court of Minnesota
“The disregard excuse for the intestate’s to find the record eyesight his time to use at the himself, his obvious danger collision, easily have when he could discovered main stepped up to moment he full of his movements. He then he had control track. Until slightest his move of head the east have could towards slightest check of his move- hazard, discovered ’ (Olson avoided the same. v. Northern ments have 258.) Co., 84 Minn. R. R. foregoing from which quotations
“In all of the cases in the many briefs, cited made, have been others *8 charged against defendant, the and or negligence proved speed decision, of the was purpose for the excessive assumed customary signals trains, of or of omission the movement ringing bell,—the whistle or same char- sounding the the say, is to negligence, contends of acter looking approach a from second time the his wife excused propositions They therefore sustain both laid of train. the case, above, Temple in the as Herbert stated Justice down authority to absence of more direct found in the be and in holding, if question warrant us decisions would our own eyes open steps his one, that a who with new were a immediately moving train, in front of a railroad a point eight feet from from a hundred distant visible necessarily, guilty as matter of collision, of and point law, contributory negligence.” of Green Gal. Go. foregoing opinion, judgment, from the former in our
contains an accurate of clear con- statement evidence, correctly sideration and findings, discussion of and an- applies nounces and the doctrine of at bar, appears" case from all that, of which it while defendant guilty was intestate pre- likewise such contributory recovery by plaintiff. cluded a
Under such judgment circumstances the and order must reversed, unless there is some other feature case of the presented by findings upon they can be sustained. by respondent
It is contended exists, such feature special and that arises court—No. 7— which is as follows: “As said train rounded said and curve going high danger- came said Humboldt Street, at a ous rate speed, downhill, engine no bell on the thereof being rung, warning or approach given, other of its being engineer charge engine on said train saw said Bessie Green and walking knew that she was on said path, crossing Street, said Humboldt of said ahead train, knowledge gave she no evidence of approach That, notwithstanding facts, engineer train. such said did not slacken or speed attempt lessen the of said or train, give warning approach. said of its as, Bessie That just going said after said train crossed Avenue toward high Green, said and at such speed, Bessie rate of said engineer Green, saw said Bessie still still saw and knew advancing upon gave she was said and that she still knowledge approach no evidence of said train, but engineer speed still said did lessen the train, said or ring give or bеll, warning blow a whistle other train, any approach given nor was until of said train or fifteen feet of within ten of the accident. That engineer stopped could have said train at said time within starting to two hundred feet after do so. That when with- in ten or fifteen feet of such accident the air-brakes, whistle, applied blew and reversed power all in appliances and did engine, with ’’ stop rang fireman he had to the bell. is, Respondent’s that while contention *9 neglect recover be, that one cannot where his contributed v. Los accident, rule is proximately directly yet to the this discovering subject exception defendant, to the that where danger peril, party placed or that has himself in a would power refuses or fails to act do some within prevented accident, have the then the dеfendant avoided notwithstanding neglect plaintiff liable, will be of the that this injury, and contends contributed to application finding presents for such a condition as calls exception general of the in the case at bar. rule exception There question is no but exists, rule and is extended to limited class usually injury discovery of cases where the avoid the after failure to ap- danger gross neglect and amounts to on defendant. proaches part actual wantonness subject clearly tersely in Shear- on this is stated Negligence 99) “It (see. man and Redfield on as follows: plaintiff may perfectly well settled that recover now damages neglect, injury an caused not- for defendant’s withstanding plaintiff’s negligence exposed own him injury, immediately risk if such was more becoming omission, defendant’s amare caused of of purpose for plaintiff’s danger, ordinary to use care avoiding injury to him.” plain- defendant, knowing of applies in cases
It where it is obvious that cannot extricate danger, tiff’s something power in his it, himself fails to which it is do injury. application, however, no It has to do avoid guilty of parties both are concurrent acts a case where very, negligence, which, at the time when the acci- each it. occurs, contributes to dent subject fully discussed Holmes v. South
This whole Ry. Co., walking 169, plaintiff, 97 Cal. where Coast waiting a station the defendant’s track at while up and down train, negligently remained case, discussing In that was struck the locomotive. defendant, notwithstanding liability of the quotes approvingly this court supreme Maine in v. Mc language court of O’Brien falling “But in cases within Glinchy, Me. as follows: negligent acts dеscription, where foregoing other, independent each act distinct and parties *10 42 Angeles Green v. Los Cal. plaintiff the preceding that of the defendant, it consid- ered that the conduct pro- does not contribute to injury, duce the if, notwithstanding injury his negligence, the could by have been avoided of ordinary the use care at the by time the applies defendant. This usually in cases where plaintiff, the or his property, position is in some danger from a threatened contact with agency under some the control of defendant, plaintiff cannot, the defendant can, prevent injury. principle . But . . this govern parties cannot where both contemporaneously actively by in fault, and their mutual injury carelessness an ensues to one or both them.” And, quoting thus far decision, our proceeds: court “This, think, thеn we regarded be as a upon correct statement of the law point, furnishing a clear and definite rule by which any to determine case negligence whether or not the person injured may legal said, sense, to have con- injury; tributed to such apply and when we this rule here, that, case it at once seen if even it should be conceded negligence upon part that there -was defendant management just its of the train at the preceding time still accident, would not recover, be entitled to as such accident could not have occurred without the concur- rent and active of the deceased at the time. The only prevented defendant was not the one who could have but, contrary, on the if the accident, deceased had himself ordinary time, possibly used care at the he could not have locomotive, been harmed defendant’s which was confined Up which it the narrow track ran. moment engine, power that he was struck was within his it escape moving which he received simply safety sidewalk, and he would realized necessity part for such action on his but for his own looking listening time in negligence at the for the approach of train.” exception general fully rule and the are further dis -by Angellotti in the recent Harrington case of
cussed Justice Ry. Co., 514.1 Angeles v. Los however, respondent giving at the full the case bar. can favorable deduction which be made from benefit Rep. 1 98 Am. St. —. Et. present any condition to still does not quoted finding, apply. exception to the rule can is, in effect declares defendant
All that this warnings failing usual give guilty of speed; that the running at an rate of its train excessive along engineer approaching the Bessie Green saw gave it; no evidence of knowl- path crossed that she notwithstanding edge train; that, approach speed fact, or lessen did not slacken such *11 give warning attempt said Bessie Green of train, of or approach. Green, during time, it Bessie observed, But all this will safety; position she not in a of absolute was walking pathway approaching upon the track, but defendant’s engineer nothing to indicate to the that she it. There was safety put place that of herself one of would leave gave danger. fact that she no evidence of a The mere walking along knowledge approach of the train while of engineer the track not indicate to the pathway towards did place рeril. of position herself in a that she was about to It people common observation that thousands of matter of crossings approach of trains and for daily cross front giving they purpose, any without indication that are They determining coming train. proceed, of aware they sufficient to make for whether have time themselves only safely not, personal solicitous their crossing or engineer giving no to the safety, indication whether pause they crossing, risk of or hazard the until will by, indicating they manner passes train or approach train, of or are concerned aware of the about it. finding quoted nothing
And as there is to this it to engineer that, as far as knew could have indicate perfectly might not have been Bessie Green well aware known, given train and still no approach of indication knowledge. of that The law or manifestation cast her see, duty looking approaching point of of sight might pre- there was train in whether danger, safety, engineer crossing track in and the had a vent her precaution had that she taken the right assume which the safety, insure her own was aware of the required sitúa- law By. Green being tion, in a safety of would remain there pass danger. ato And unless it can be said a matter of law that engineer of an ap- to check his train when he sees one proaching a track and giving knowledge no indication of coming train, finding then this simply amounts to a engineer that the was negligent, which, of is conceded course, in the case. not,
This is however; dis- which we are now cussing, and for the defendant is claimed to be liable. liability engineer Its is for after the had discоvered position that Bessie placed Green had herself in a actual danger.
During along all the time that she pathway crossing position she was of absolute safety, charged no engineer there is law which knowledge change with position she was about to her safety peril. contrary, for one of On the had possession to assume that she was her faculties recklessly and would retain her place safety, and not danger. expose herself to To engineer, that the because hold gave knowledge approach she no indication of heedlessly was bound assume that she would leave *12 safety, endanger put of herself track, life, which, her as would be to revise the rule far as we are in advised, jurisdictions, certainly is universal all engineer in state, person rule this that where an sеes right presume a track has he to that possession faculties, is in his ordinary of to alert may danger passing trains, ensue that he attempt will not to in of the cross view and is there- required speed fore not to check the the train to enable in front or it, him to cross to ascertain he is whether about to do so. Co., Green v. Southern action Pacific
"brought damages for to recover the death of the husband crossing, says: killed at a this court “Unless defendant knew, believe, to had reason that the deceased was possessed ordinary ability some cause not to care himself, right presume possessed had to such ability ordinary precautions protect would take to By. v. Los injury.” also, Holmes v. South himself from (See, Pacific Ry. Co., 161.) 97 Cal. Coast expressed clearly subject is
And 258, hereto R. 84 Minn. Northern R. Olsоn v. the deceased was a case where fore referred to. That was and the court attempting a railroad killed to cross the rule its on the facts and declares comments decision find says: to applicable to It “We are unable them. law disregard his excuse for intestate’s the record duty eyesight to his at the time obvious to himself use danger easily collision, he could have discovered the upon the track. up stepped moment he main tv full of his movements. He “Until he had control then east, could, by slightest movement head towards his hazard, his slightest his check have discovered such circumstances avoided the same. Under movements have recovery preclude in this his want of care case. obvious must urges notwithstanding plain- strenuously that, . . Plaintiff . negligent, yet have been the servants tiff’s intestate engine freight-train ordinary with could, control of the danger, ring his their care, have discovered failure they accident, bell, or make some effort to avoid authorizes the submission of the intestate, could have seen contributory negligence. notwithstanding case, such We are presumption The adopt this view. reasonable unable persons all in mutual relation be exercised due care will partial doctrine, required is not a or one-sided when care It seems clear each to us while applies to alike. but say might right signals that all should the intestate defendant’s servants the exercise be observed by such, latter also would have the ordinary care presumption same with reference to the indulge in the deprived life unfortunate man who was of his conduct presume that he wоuld do by his own suppose could held to likewise. *13 law, young good that a a matter man of absolutely, average faculties, going railway before on a intelligence, with away keep his head turned from the direction crossing, would might approaching, slightest when the a train eye, apprise the moment, even at last would glance checking danger, the of his movements, or upon him 46 etc. Rt. Co. plainest dictates of common prudence, pro- would have ’’ injury.
tected him from Gahagan the ease Co., v. Boston R. etc. R. 70 N. H. 441, injuries was likewise an action received a cross at ing, discussing reciprocal pedestrians court, duties trains, following language: railroad uses “In the present is case there plaintiff evidence that when the first by engineer seen pre the collision could have been еngineer If knew, ought vented. known, have then plaintiff crossing would be when the train it, collision, reached and could have avoided the failure proximate do injury. so cause of the As there was might prevented by evidence that the collision him, been whether, remaining question evidence, sole might engineer ought reasonable men find the then to have plaintiff’s negligence. foreseen the fact that bare approaching was seen is not sufficient to finding. authorize such If the rule heretofore laid were, down, approved and found to be the authorities and the duty reason highway that it is the case, traveler stop pass, and allow the train would It be reversed. would then become the of the train stop and wait for person by. go on foot to This unreasonable, would be put system to the modern unpracticable, rapid end transportation public, demanded and to effectuate company’s which railroads authorized the state. The may ordinarily presume servant apparently age walking upon of full who is capacity, the track at engine, some distance before will leave it in time to save or, if harm, himself from will dangerous stop if for him it becomes to cross it.” like To the assign a other we few authorities: effect Beach on Contribu tory Negligence, 394; sec. Cleveland etc. Ry. Miller, Co. v. Guyer 490; 149 v. Missouri Railway Ind. Co., 174 Mo. Chicago Ry. Co., 344; Kirtley v. etc. 65 386; Fed. Boyd v. Ry. 105 Co., 371; Western Mo. Wabash Smith v. Norfolk 728; 114 Co., N. C. McNab v. R. United Co., S. 719; Syracuse Rap. v. Rider 139; Md. Trans. Y. N. City Ry. Co., 157 Mo. Kansas 621.1 Jackson thus declare that As authorities had Rep. 1 80 Am. St. 650. *14 Ey. Angeles v. Los Green be) in (as assume the this case found the fact to
to court possession faсulties, in full Bessie Green was of her natural safety place and to further assume that as she was of danger to of path expose on the she would herself attempting question arises, to When did cross track, place position Bessie Green herself in a of and when danger, placed plaintiff’s employees so herself did exercise she every prevent question effort to to her? This is an- findings. swered both the evidence and case bar, quoted, at apparent the Minnesota ease above it is guilty contributory negligence that Bessie Green no up stepped upon moment when she the defendant’s presence in practically the actual perfect safety, and, train. Until was in as said then she case, the Minnesota “until then was to the mo- [which stepped upon full ment he the main hе had control track] slightest of his He could movement of movements. hazard,
his head towards the east have discovered his slightest by the check of his movements have avoided the same.” only placed position peril then herself in a
Having did stepped pathway she from the moment engineer, peril her thus arose, defendant’s avoiding injuring opportunity her, he fail clear did inquiry so? are satisfied that must be do We answered and that this conclusion is irresistible when negative, finding quoted—special No. 7— we consider above finding—No. special another 6. in connection with just stepped “That as Bessie Green finding is, This last going same, track to cross the as above defendant’s engine train, described, struck of defendant’s she was ’’ running along said track. down and quoted No. that from apparent finding, It is engineer discoverеd that Bessie Green was the moment the footway pass from the track—from her about to power safety peril—he did all place to one of found, accident, expressly “that when because it avert the from the of such accident the ten or fifteen feet within and reversed whistle, applied the air-brakes blew appliances power, and did all in his with the engine, rang fireman the bell.” train, and the stop had to Now, taking findings these together, quite it is clear that Bessie Green stepping from a safety danger presence one in the taking and without ordinary precautions which the law cast her in her situation; that she was *15 only placed peril in such at the stepped moment when she safety her upon pathway track; that from placed the instant when she herself in that situation peril, employees the defendant’s power did all in their to avert the but without accident, avail. This all law required of them. then, special
As, respondent the. relied on unavailing, in connection findings, considered with the other operation to take the general case from the of the rule, that contributory negligence will defeat a of recovery, and appears proximate as it cause of the death of Bessie judgment Green was her own in sustained, together favor of the cannot be it, denying with the order defendant’s motion for trial, a new reversed, are and the cause remanded.
McFarland, Henshaw, J., concurred. J., ANGELLOTTI, J., concurring. I concur. Further con foregoing question discussed in the of the second sideration question liability defendant, as to opinion,—viz., contributory negligence deceased,— nоtwithstanding the brought conclusion that the ease is me has forced exception general findings within injured person contributory negligence of the will bar a fully upon question this set recovery. views My Angeles Ry. Harrington in opinion in the forth 514.1 Cal. Angellotti, J. concurred with J., Shaw, I dissent. This case J., dissenting. cannot BEATTY, C. Ry. facts from Lee v. on the Market-Street distinguished judgment in case founded If the 295. Co., 135 Cal. oppor of “last clear application doctrine proper judgment in this should injury,” case tunity to avoid Rep. —. 1 98 Am. St. v. Los my opinion former hear-
be affirmed. In delivered foregoing ing, commenting upon the facts quoted opinion expressed I to which I still court, the views adhere, as follows:— applicable to the facts thus found
“The rule law In the most by a series of court. settled decisions Ry. Co., 135 Cal. (Lee recent these cases v. Market-Strеet having oppor- briefly 295), it is stated as follows: ‘One i injuring another, tunity by proper care to the exercise avoid placed himself so, notwithstanding must do the latter has J danger by negligence.’ almost position of his own This is Fox quotation literal from Justice Van Fleet’s 62,1 support Ry., 118 where v. Oakland Cons. St. Cal. reports,
the rule a cited from our own number of cases are including Co., 103 Esrey v. Southern Pacific oppor ‘He who last has a clear case the rule is thus stated: proper care avoiding the accident the exercise of tunity of must do so.’ injuring to avoid another *16 Negligence it
“In section of Shearman and Redfield perfectly plaintiff that the well settled is said: ‘It now injury by the defendant’s may damages an caused recover for notwithstanding plaintiff’s own more injury, if such exposed him to the risk by omission after becom- immediatеly the defendant’s caused danger ordinary care for the ing to use plaintiff’s aware of avoiding injury to him.’ purpose of amplified in cited, is further the section proposition
“This long by array of decided cases. supported the text is 674.) Torts, (See, also, Cooley on be, seems to
“The essence of the doctrine in actions of this is not a defense plaintiff of the injury, proximate cause of it is the character, unless defendant, proximate cause when is not such evidently or is danger plaintiff is becoming in, aware of by consequence in, could avert the himself to about This sound and wholesome care. of reasonable exercise previous negligence where no in cases applies even doctrine plain- lull to has contributed defendant part of the on the con- it would have security, fortiori, and, a false tiff into found where, like the present, in a case trolling force Rep. 216. 1 62 Am. St. Cal.—4 CXLIII. Donegan. Wilhelm v. excessive an moving its train at the defendant was court, Angeles1 city dangerous speed along a street of sounding use of steam..
without bell or whistle and without the became According court, to the of the .the running, danger aware wife plaintiff’s into which by slackening the might easily collision have avoided the by giving danger speed warning her her of give.” signals which, law, under it was dissenting.—I dissent, grounds DYKE, on the J., VAN Justice. foregoing of the Chief stated April 16, [L. A. Department One. No. 1420. Appellant, OTTO G. DANIEL F. DONE WILHELM, GAN, Respondent. Trespass—Upsetting op Buggy—Bunaway—Becovery Limited Complaint.—In injuries plaintiff’s horses, buggy, action harness, alleged have been defendant’s act of tres- caused pass upsetting motion, resulting runaway, in a buggy while in recovery proof trespass alleged, is limited to the act of rely upon any alleged and he cannot other act of the defendant not runaway. caused the Harmony.—An instruction Id.—Instructions Construed upsetting unless the could recover act effect proved by preponderance evidence, and buggy was another jury “wrongfully if found that defendant to the effect that injury” plaintiff’s horses, harness the buggy, and inflicted recover, harmony, plaintiff is are to be construed entitled to conflict; and the latter instruction must deemed and not injury alleged, the act where the court read the com- refer to *17 plaint jury, plaintiff only attempted prove and the alleged. act Superior judgment APPEAL of Los Court County from an order denying a new trial. Judge. York, M. Waldo opinion. are stated facts Appellant. Mattingly, H.
Charles