98 Cal. 309 | Cal. | 1893
This is an action to recover damages for injuries to property (horses aud harness) resulting from a collision with a train of cars at a railroad crossing in the city of Oakland. A nonsuit was ordered by the trial court aud the plaintiff has appealed.
The accident occurred in the settled portion of the city. The train was going at the rate of thirty or thirty-five miles an
Ho comment by the court upon this state of facts is demanded.The conduct of the driver indicates a degree of negligence closely allied to recklessness. His negligence would have been but one degree more culpable if he had driven his team upon the track and there awaited the coming train and the inevitable collision. The conduct of both plaintiff and defendant clearly indicates an absence of the exercise of the most ordinary care, and under those circumstances the defendant is not liable, unless the acts which resulted in the injury were wilfully and deliberately done, and the evidence does not go to that extent. This is the established doctrine, and is supported in this state by an unbroken line of authority.
For the foregoing reasons let the judgment be affirmed. .
Harrison, J., and Paterson, J., concurred..
Hearing in Bank denied.