41 Cal. 109 | Cal. | 1871
The Court cannot pronounce, as matter of law, that the conduct of the plaintiff, in standing on the rear platform of the street car and steadying himself by holding the rail of the platform, was contributory negligence—that it contributed proximately to the injury inflicted on his hand by the wheel of the defendants’ dray, which was passing along the rear of the car.
The question whether the defendants’ drayman could, by proper care, have avoided the collision between the dray and car, is a question of fact for the jury. His testimony that the collision would not have occurred, except for the slipping of the wheels of the dray on the track, does not conclusively repel the imputation of negligence. The railroad track was higher than the street, and in crossing the track in the manner he did the wheels of his dray would almost necessarily slip on the track; and if the jury believed from the evidence, that he knew or could readily have seen the condition of the track, and that he did not take proper precaution in crossing the track with "his dray, they were justified in finding the negligence imputed to him.
We see no substantial error in the charge to the jury.
Judgment affirmed.
Mr. Justice Sprague did not express an opinion.
