40 Cal. 272 | Cal. | 1870
delivered the opinion of the Court, Ehodes, C. J., and Wallace, J. concurring:
This is an action for damages for the alleged negligence of the defendant, resulting in the death of the plaintiff’s son, a child seven years old. The cause was tried before a jury, which returned a verdict for the defendant; and we discover nothing in the record which would justify us in disturbing the verdict. The only ruling of the Court on the trial which is complained of was in respect to the exclusion of certain testimony by the witness, McMahon.. The plaintiff proposed to ask this witness whether it was not the daily practice of the defendant’s cars to run along without a driver, and .whether this fact did not induce a practice among the children along that street to run along with the cars and get upon the platform. It was wholly immaterial in this case whether it was the usual practice of the defendant to permit its cars to run without drivers, inasmuch as it clearly appears that, on the occasion when the plaintiff’s son was killed, the car was not rwming without a driver. On the contrary, all the evidence shows that there was a driver aboard the car, and that at the time of the accident he had stepped back into the car to collect the fares. Nor was it possible for the witness, even if the practice of running the cars without drivers prevailed, to state whether this practice induced the children to get upon the platform. It would have been purely a matter of opinion, and'not the statement of a fact. It was the province of the jury, and not of the witness, to deduce conclusions from the facts proved.
