92 Cal. 285 | Cal. | 1891
Lead Opinion
This is an action brought by the administrator of one De Mattos, to recover damages for causing his death.
The plaintiff was nonsuited by the superior court, and his appeal from the judgment presents two questions: 1. Did the evidence introduced by the plaintiff in the superior court make out a prima facie case of negligence on the part of the defendant? and if so, 2. Did such evidence show that De Mattos was himself guilty of contributory negligence?
The following brief statement of the facts which the evidence on the part of the plaintiff proved, or strongly tended to prove, is extracted from the brief of bis counsel, and is in every particular sustained by the record: —
" On the twenty-sixth day of July, 1886, the deceased,
“ Mr. Edgar De Pue had been for more than two years engaged by the defendant as a contractor, to load and' unload their cars at these docks, employing at times in this business as many as one hundred men. To facilitate the operation of loading and unloading the cars, the defendant had been in the habit of sending daily two locomotive-engines from Port Costa to the docks. On their way to the docks, these engines were accustomed to carry some of the hands engaged in loading and unloading; but by far the larger part of the force daily found its way from Port Costa to the docks, and back again after their day’s labor, by walking along the space between the tracks. There was no road, and no means, except by the railroad track, to reach the docks from Port Costa. The deceased, De Mattos, was one of the men thus employed by Mr. De Pue.
“ In the early morning of the twenty-sixth day of July., 1886, a crew of men under' the supervision of Mr. De Pue started from Port Costa for their work at the docks. Two locomotive-engines were, as usual, to accompany them from Port Costa. Some of the men, and Mr. De
“ De Mattes was among the men who had started afoot, ahead of the engines, and who were traveling toward the docks, along the accustomed path between the tracks. While they were thus traveling on a narrow part of the road, where the switch-track came up to the water’s edge, and the main track was but a few feet from the, abrupt bluff on the other, they were warned, by the sound of its bell, of the approach of the engine on the switch-track. Turning, they beheld it approaching at a distance of about forty yards; but at the same time they saw the engine on the main track almost upon them, approaching without warning, and at full speed.
“ As the main engine was coming at full speed, a glance sufficed to show that it would, in a moment, be abreast of the switch-engine, and thus the whole space of the roadway between the bluff and the water would be covered by them. The danger of their position flashed at once upon the mind of every man. On one side was the water, on the other side the high bluff. To use the expressive language of the foreman, ‘the men did not have much time to think, and, in a moment of desperation, they took the best course they thought possible,’ to escape impending death. One of the men ‘jumped on top of the rocks in the water,’ and was fortunate enough to escape without more than some injuries to his legs. Another tried the dangerous experiment of remaining standing between the tracks, and allowing the engines, which were running abreast, to pass him. He was struck by one of the engines as it passed, but not so as to cause
Such being the case, it should have been left to the jury to decide from the evidence whether, as matter of fact, there was negligence on the part of the defendant, or contributory negligence on the part of De Mattos. It cannot be held as a legal conclusion upon such a statement of facts, that De Mattos was, or that the defendant was not, guilty of negligence.
The judgment and order are reversed, and cause remanded.
De Haven, J., and Garoutte, J., concurred.
Harrison, J., and McFarland, J., dissented.
Concurrence Opinion
I concur in the judgment.
In the former decision it was said: “The same facts which show that the deceased was negligent show also that the employees of respondent were not guilty of negligence.”
Upon further consideration of all the evidence, I am not prepared to say, as matter of law, that the engineer in charge of the engine on the main track, with his knowledge of all the circumstances, was not negligent in running at a rate of speed which would bring the locomotives together at the narrow part of the road where the men were traveling.
The question is not, How would I act were I a juror? but whether there is any evidence at all from which inferences may be drawn in support of or against the charge of negligence. Speaking of nonsuit, the court, in Wilson v. Southern Pacific R. R. Co., 62 Cal. 172, said: “But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or con_ sists of circumstances from which inferences may be drawn for or against it, it is the province of the jury
Whether the engineer was guilty of negligence, and whether the deceased was guilty of contributory negligence, under the rule stated and under the evidence, cannot be determined as matter of law, but should be submitted to the jury, with proper instructions from the court.
