34 P. 868 | Cal. | 1893
The plaintiffs were being carried as passengers in one of the coaches of the defendant on the night of
It was shown at the trial that it had rained very hard on the previous night, and that on the night in question the road was muddy and slippery; that after reaching the top of the mountain, and while going down, after turning a certain bend in the road, the horses attached to the coach were frightened by a slide of rocks and earth and ran about one hundred yards before they were got under control, and were then driven along until they were frightened by another slide, after which the driver lost all control of them, and, after running about three-quarters of a mile, the coach was upset. It is contended by the appellant that the evidence in the ease failed to show any negligence on its part, for the reason that the accident was the result of a casualty which could not have been foreseen or guarded against, and that for this reason the verdict should have been in its favor. There was, however, evidence before the jury tending to show that one of the horses attached to the coach had been inclined to run away; and, although the bill of exceptions does not show the speed at which the horses were driven down the mountain, the driver testified that from the top of the mountain down to the bend where the first slide 'was encountered he was going at a “slow jog,” and that, after their first fright, they ran about one hundred yards, when he got them under control, so that they went in a trot. He also testified that the road was slushy and wet, and that mud was flying, so that he could hardly see anything, and that this would have a tendency to scare the horses. The court instructed the jury very fully upon the propositions of law involved in the case, and left to them to determine whether the injury to the plaintiff was caused through any negligence of the defendant or was the result of an unavoidable accident. Under the circumstances attendant upon the passage down the mountain it was incumbent upon the driver to exercise more than ordinary care, and we cannot say that there was no evidence before the jury in support of the plaintiffs’ claim that
The court did not err in refusing to instruct the jury that the defendant was not liable for any latent defect in its coach which could not be discovered by the most careful examination or by any known test. There was no issue of this nature in the case. The charge of negligence against the defendant in the complaint is in its failure to provide a suitable driver and suitable horses for said coach, and there had been no evidence introduced respecting the insufficiency of the coach. For a similar reason the court did not err in refusing to instruct the jury respecting the duty of Mrs. Knight to exercise proper care in endeavoring to recover from the accident. No evidence was before the jury tending to show that she had in any particular failed in this respect. The judgment and order are affirmed.
We concur: Garoutte, J.; Paterson, J.
