56 Cal. 513 | Cal. | 1880
At the time of the injury for which this action was brought, the plaintiff, an infant of between six and seven years of age, was residing with his parents near the railroad of the defendant, and but a short distance from where a public highway crossed the railroad track. There is testimony in the record tending to show that shortly before the accident the plaintiff was at play in the yard of his parents with another boy about nine years old, the son of a Mrs. Poole. That this lady and the
When the case was last here (Meeks v. S. P. R. R. Co. 52 Cal. 604), the facts, as made to appear, and on which it was held that the plaintiff was not entitled to recover, were thus stated by the Court: “ The plaintiff, an infant of some six years, seems to have been permitted by his parents to make use of the roadway of the defendant as a play-ground, and to lie down on the railroad track unattended. As to whether he was asleep upon the track, or awake, there is some conflict in the evidence. But this is not material; for in either case, such conduct amounted to negligence per se, which would defeat a recovery by the plaintiff here. It should be observed, in this connection, that there is no evidence whatever of the lack of diligence and due care upon the part of those in charge of the train. The plaintiff was lying on the track, parallel with the rails; he was discovered by the engineer and lookout at some distance ahead; but, notwithstanding a continued scrutiny exercised by them, they were unable to discern that the object at which they were looking was other than a brush, or some in-, significant obstruction upon the track. When they did discover that a child was lying there, they used every endeavor to slow up the train, but it was then too late to prevent the accident by any, even the utmost, effort upon their part.”
The facts as made to appear in the record now before us differ from the facts then appearing, in many material respects.
As the case is now presented, it does not appear that the plaintiff was permitted by his parents to make use of the road
In another important respect, the facts as now made to appear differ from those presented on the former appeal. Then, as observed by the Court, there was “ no evidence whatever of the lack of diligence and due care upon the part of those in charge of the train.”
Not so, however, now; for there is in the record testimony on the part of the plaintiff tending to show that at the place the injury occurred, and for a considerable distance beyond, the road of the defendant was perfectly straight, and free from weeds and other like obstructions; that the day was very clear, and that at the time of the injury the plaintiff could have been seen and recognized as a boy on the track at a distance of from three hundred to three hundred and fifty yards. This testimony undoubtedly tends to show negligence on the part of the employees of the defendant. But it is greatly strengthened by the testimony of some of the defendant's witnesses. It appears from their testimony that there were on the engine at the time of the injury three persons—Jackson, the engineer; Holmes, the conductor; and a fireman. The engineer had control of the engine, and it was his duty to keep a lookout. Yet Holmes testified that he himself saw the plaintiff at a distance of four or five hundred feet ahead, but supposed he was a bunch of leaves or weeds, or some other insignificant object, until they got within about one hundred and fifty feet of the plaintiff, when he discovered he was a child, and then called out to the engineer, “ Murder ” ; and that up to the time that he, Holmes, called out “ murder," the engineer had made no demonstration that there was anything on the trade. The testimony also tended to show that the whistle was not blown nor the bell rung,
The question remains, Does the case show such contributory negligence on the part of the plaintiff or his parents as will preclude a recovery by him?
In our opinion, the doctrine of the cases of Needham v. S. F. & S. J. R. R. Co. 37 Cal. 409, Kline v. C. P. R. R. Co. id. 400, and the other cases in this Court approving them, determines the question in the negative. Said the Court in Needham v. S. F. & S. J. R. R. Co.: “ No more in law than in morals can one wrong be justified or excused by another.
“ A wrong-doer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs, nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former; and if by so doing he can avoid injuring the person or property of the former, he is liable if he does not, if by reason thereof injury ensues.” Eeferring to the rule adopted in New York, the Court proceeds: “The error of the New York courts lies in the fact, that they ignore all distinction between cases where the negligence of the plaintiff is proximate, and where it is remote, and in not limiting the rule, which they announce, to the former.” The Court then quotes approvingly from the opinion of the Supreme Court of Connecticut, in the case of Isbell v. New York & New Haven Railroad Company, 27 Conn. 404, language which we think appropriate to the case under consideration. Said the Court there: “A remote fault in one party does not, of course, dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity demand this, and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Preventive remedies must, therefore, always, be proportioned to the case in its peculiar circumstances—to the irnminency of the danger,
Kline v. C. P. R. R. Co. supra, was an action to recover damages for personal injuries sustained by the plaintiff by reason of his having been, as alleged, wrongfully expelled from the cars of defendant by the conductor, while the cars were in motion. The Court there said: “ Although the plaintiff was wrongfully upon the cars, the conductor was bound to exercise reasonable care and prudence in removing him. The rule that the plaintiff cannot recover if his own wrong, as well as that of the defendant, has conduced to the injury which he has sustained, is confined to cases where his wrong or negligence has
McKinstry, J., and McKee, J., concurred in the judgment.