87 Cal. 62 | Cal. | 1890
Lead Opinion
This is an action to recover damages for personal injuries sustained by plaintiff while traveling as a passenger on one of defendant’s trains.
Appellant contends that the judgment and order should be reversed, because plaintiff failed to show negligence in the management of the train, or any defect in the defendant’s railroad track.
It is doubtless true, as claimed by appellant, that in cases of this character the burden of proof is upon the plaintiff to establish negligence on the part of the defendant, and that the mere fact that a passenger was injured while on his journey is not sufficient to raise a presumption of negligence on the part of the carrier. But in this case not only is the injury admitted, but the derailment and overturning of the car are undisputed facts, and there is evidence tending to show that at the time the accident occurred the train was running down a steep incline leading to the bed of a river, on a new and curved track, at an unusual and dangerous speed. This showing was sufficient to throw upon the defendant the burden of proving that the injury was not caused by any want of care on its part. (Boyce v. Cal. Stage Co., 25 Cal. 460; Lawrence v. Green, 70 Cal. 417; 59 Am. Rep. 428; Treadwell v. Whittier, 80 Cal. 574; 13 Am. St. Rep. 175; Breen v. N. Y. C. R. R. Co., 109 N. Y. 297.)
The evidence of the defendant tends to show that the plaintiff had been upon the platform several minutes before the accident occurred, but if the jury believed the testimony of the plaintiff, it was for them to say whether the circumstances were such as would lead a person of ordinary prudence to act as the plaintiff did. The inquiry is, Where there has been an unsuccessful attempt to escape danger in an accident, was the attempt which was made an unreasonable or rash act? or was it one which a person of ordinary care and prudence might do under the circumstances? The answer to this inquiry cannot be made to depend upon the result <jf the attempt to escape, nor upon the result which would have occurred if the attempt had not been made. It would be unreasonable to require a passenger in case of accident to judge with absolute certainty the degree of danger attending him if he made no effort to escape, and the absolute consequences of an effort to escape. He must act upon the probabilities of an effort to escape as. they appear to him, and choose that hazard which seems to him, as a person of prudence, to be the least. Of course, the facts that he was injured in the attempt to escape, and that those who remained in the car escaped without injury, are circumstances which the jury should consider in determining whether he acted as a man of ordinary prudence would under the circumstances; but where he has acted in the manner described, it cannot be said that his attempt to escape constituted contributory negligence. (Twomley v. C. P. N. & E. R. R. Co., 69 N. Y. 160; 25 Am. Rep. 162; Iron Railroad Co. v. Mowery, 36 Ohio St. 418; 38 Am. Rep. 597.)
In Buel v. N. Y. C. R. R. Co., 31 N. Y. 319, 88 Am. Dec. 271, the court said: “The statute exempts a railroad company from liability to a passenger who shall be injured while on the platform of a car, etc., in violation
was intended to prevent the imprudent act of standing or riding on the platform, but not to absolve railroad companies from responsibility for every injury which might happen at that place when a passenger is passing over it, while justifiably entering or leaving the cars.” In that case it was held that although the plaintiff was injured while attempting to escape from the car in a collision, and although the passengers in the same car with him, who kept their seats, escaped uninjured, he could not be held guilty of contributory negligence; that he acted with ordinary care and prudence.
We have carefully examined the instructions of the court to the jury, and find no error in any of them.
The court erred in sustaining plaintiff’s objections to the questions asked by defendant as to the conduct of the passengers who remained in the car, and whether any of them was injured. Evidence of the action of other passengers in such cases is competent as a part of the res gestx, and to show what they, being in the same dangerous situation, deemed prudent conduct. They all had an equal interest in protecting themselves, and will be presumed to have done what appeared to them to involve the least hazard..
This error was cured, however, by other testimony — which appears nit to be disputed — showing that there were only three passengers in the car besides plaintiff.,
There is another error assigned, based upon the refusal of the court to allow defendant to ask how often plaintiff had traveled over the road prior to the accident; but as evidence on the topic went in afterwards without objection, no prejudice can be predicated on the ruling complained of.
There was one error which we think was prejudicial, and which entitles the appellant to a new trial. The plaintiff testified that the car left the track immediately after he reached the platform; that “just as I [he] had stepped out of the car door the crash came.” It was claimed by the defendant, and it attempted to show by evidence, that plaintiff was improperly on the platform; that he was not there through fear of an accident; that he had been standing on the platform in violation of its regulations several minutes before the accident occurred, and was consequently guilty of contributory negligence. The conductor testified that he left the smoking-car two' or three minutes before the accident occurred, and that plaintiff went out with him; that the train was not going as fast then as it had on former occasions at the same point, and while plaintiff was on board; that he gave the brakeman orders to -let off the brakes, walked back into the smoking-car and took his seat, while the plaintiff remained standing on the platform. The defendant then called S. W. Smith, who was one of the three passengers in the car at the time of the accident, and he was asked to state whether Mr. Clark, the conductor, returned into the smoking-car after he and plaintiff left it, and before the accident occurred. Plaintiff objected to the question, on the ground that it was immaterial; the court sustained the objection, and defendant excepted.
The question whether plaintiff went upon the platform under the circumstances narrated by him was a most important one; in fact the main question in the case is,
Judgment and order reversed, and cause remanded for a new trial.
McFarland, J., Fox, J., and Beatty, C. J., concurred.
Works, J., concurred in the judgment.
Sharpstein, J., dissented.
Dissenting Opinion
I dissent. The exclusion of the testimony of Smith on which the reversal is ordered could not possibly have caused any injury to the defendant. Evidence of the return of the conductor before the catastrophe occurred in which the plaintiff was injured was already in and uncontradicted. The conductor had already testified to the fact of such return. The time of the return of the conductor from the platform could not possibly show how long the plaintiff stood on the platform, as the conductor, when he returned, left the plaintiff standing on the platform. The evidence shows that the conductor and plaintiff went on the platform at the same time. The conductor returned, leaving plaintiff on the platform. How could the time of the
Rehearing denied.