84 P. 425 | Cal. Ct. App. | 1906
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *129 This is an appeal by defendant from a judgment in favor of plaintiff, and also from the order denying defendant's motion for a new trial.
It first becomes necessary to dispose of some objections raised by respondent to the consideration of the appeal upon its merits. It is first objected that the bill of exceptions cannot be considered because not served in time; and secondly, that though the court, on application of defendant, relieved defendant, under section
First, as to the point that the bill of exceptions or statement was not served in time, it is allowable for the trial court to relieve a party under section
*130
[50 Pac. 682]; Banta v. Silla,
Neither do we think that we should disregard the bill of exceptions or statement (it is headed "Bill of Exceptions" and is described in the certificate allowing the same as the "foregoing statement"), for the reason that the motion made to the court was for leave to serve a statement, although the notice of intention to move for a new trial stated that it would be made on a bill of exceptions. There is no substantial difference between a bill of exceptions and a statement. (People v. Lee,
Respondent also makes the point that as no answer was ever filed by defendant to plaintiff's amended complaint the judgment and order appealed from must be affirmed. Upon this point the record shows that plaintiff's original complaint was filed June 20, 1903, and charged, in substance, that a servant of defendant carelessly drove a team of horses and wagon against plaintiff at the crossing of Howard and Twenty-second streets, whereby plaintiff was greatly injured, etc. To this complaint defendant filed an answer, wherein it took issue with the material allegations of the complaint, and also expressly pleaded contributory negligence on the part of plaintiff. Subsequently plaintiff, by leave of court, filed an amended complaint, wherein she charged that the injury and accident occurred at the crossing of Howard and Twenty-third streets, and somewhat more particularly described the manner in which the servant of defendant drove the team. No answer was filed to this amended complaint, nor was a default entered or taken for failure to answer thereto; but when the case came on for trial the cause was tried in all respects, both in the manner of taking the evidence and in charging the jury, as if issues arising out of denials of all the material allegations of the complaint, as well as the issue of contributory negligence, were before the court and jury. Under these circumstances we do not think that respondent can for the first time in this court raise the point that there were no issues to be tried by the jury. In the case of Gale v. Tuolumne Water Co.,
Having disposed of the preliminary objections made by respondent, we now take up a discussion of the points urged by appellant for a reversal. It is contended that the evidence *132 is insufficient to support the verdict, in that there was no evidence of negligence on the part of defendant, and that the evidence shows without conflict that plaintiff was guilty of contributory negligence, and that the verdict is excessive. The action is one for damages claimed to have resulted to plaintiff from injuries received by her while crossing Twenty-third street along the easterly crossing of Howard street, by being struck by the pole of a wagon driven by the servant of defendant. Inasmuch as we think the judgment and order must be reversed for errors of law, we do not think it advisable to pass upon the questions in this paragraph stated.
The defendant asked the court to charge the jury as follows: "In order for the plaintiff to be entitled to recover against the defendant, the plaintiff must show, by preponderance of evidence outside of the mere proof of the fact that a collision occurred, that such collision was due to the negligence of defendant; and, if the plaintiff has failed to show by preponderence of evidence satisfactory to your mind that the accident or collision in which the plaintiff received her injuries was caused by the negligence of the defendant, then the plaintiff is not entitled to recover against the defendant, and your verdict must be in favor of the defendant." The court struck out the words "outside of the mere fact that a collision occurred," and as thus modified gave the instruction. We think the instruction should have been given as asked. There are cases where the mere fact of the accident raises a presumption that defendant was negligent, as in cases of injuries to passengers on vehicles of common carriers, because of the special care that the common carrier owes to its passengers. This rule is not limited to injuries to passengers, but exists wherever the circumstances impose upon one party alone the obligation of special care. (Cooley on Torts, 799.) The application of the rule that proof of the accident alone may raise a presumption of negligence on the part of defendant is quite fully discussed in Judson v. Giant Powder Co.,
After instructing the jury that plaintiff could not recover if she and defendant were both guilty of negligence that proximately contributed to the injury complained of, the court, in an instruction numbered 19 in the record, charged the jury as follows: "But there is a further principle firmly established in this state, that one having an opportunity, by the exercise of proper care, to avoid injuring another, must do so, notwithstanding the latter has placed himself in a position of danger by his own negligence. Another statement of the same rule is as follows: He who last has a clear opportunity of avoiding the accident by the exercise of proper care to avoid injuring another must do so." No fault is found with this instruction by appellant as a generally correct statement of a proposition of law; but appellant does complain of the refusal of the court to give two instructions asked by appellant (Nos. 11 and 13), each of which embodies the proposition that before a defendant can be held liable for failing to use ordinary care to avoid injuring a plaintiff who has, by his own negligence, placed himself in a position of danger, the defendant must have actual knowledge of the dangerous position of the plaintiff. Each of these instructions correctly stated the law, and should have been given, as there was evidence in the case to which such instructions were pertinent. In Herbert v. SouthernPacific Co.,
In his brief, counsel for respondent does not attempt to dispute the soundness of the law of the requested instructions now under discussion, but contents himself with the statement that they were substantially given. He does not, however, call our attention to any instruction that was given that he claims to be in substance the same, and after a careful examination of the record, we have found none.
The order and judgment must be reversed, and it is so ordered.
Harrison, P. J., and Cooper, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 18, 1906.