102 Cal. 143 | Cal. | 1894
Upon a reconsideration of this case, we are satisfied with the opinion therein filed by Department Two of this court on October 10,1893, and for the reasons there stated the judgment and order appealed from will be affirmed.
Judgment and order affirmed.
The following is the opinion above referred to, rendered by Department Two on the 10th of October, 1893:
The Court.—This action was brought to recover damages for personal injuries sustained by the plaintiff, who is respondent here, through the alleged negligence of defendant. Plaintiff had a verdict for eight thousand dollars, for which sum judgment was entered. The appeal is from the judgment, and from an order denying a' new trial.
The Sixth street car line of the Los Angeles City Railway crosses the track of the Southern Pacific Company
The switch engine was stopped some fifteen or twenty feet before reaching the crossing. The street-car had passed the crossing five feet when plaintiff jumped from it, the engine being still in motion. The fireman on the engine saw the street-car, notified the engineer, and he stopped the engine.
The servants of the defendant in charge of the engine did not wantonly and unnecessarily let the engine take steam and start it with intention thereby and for the purpose of frightening the street-car passengers,
At common law it was not necessary in a declaration for negligence to set out the facts in detail, constituting the basis of the action. The following was the usual form, against the owner of a carriage for negligent driving: “For that defendant so negligently drove his horse and carriage that the same struck against the carriage
In adopting what is known as the code system of pleading, courts in most of the states have excepted from the general rule, requiring a complaint to state the facts constituting the cause of action in ordinary and concise language, cases founded upon negligence; or rather, they have so far modified the rule as to permit the plaintiff to state the negligence in general terms, without stating the facts constituting such negligence. This modification of a rule of code pleading is founded in wisdom, and grows out of a fundamental rule in common-law pleading, to the effect that “no greater particularity is required than the nature of the thing pleaded will conveniently admit.” (Stephens’ Pleading, *367.) Supported by that other rule that “ less particularity is required when the facts lie more in the knowledge of the opposite party.” (Stephens’ Pleading, *370.)
In cases of negligence the sufferer may only know the general, the immediate, cause of the injury, and may be entirely ignorant as to the specific acts or omissions which lead up to it. Bliss, in his work on Code Pleading, at section 308*, gives the following illustration: “The driver upsets a stage-coach and breaks a passenger’s arm; careful driving will hardly have such a result; the passenger knows there has been negligence, but he may not know in what it consisted. The driver may have been drunk and asleep; he may have so harnessed the horses that they would not obey the rein, or may have made them unmanageable by improper treatment. The plaintiff can only prove that the coach was turned over; the presumption is that it was the result of negligence; if not, the defendant can show it.
The term “negligence,” for the purpose of pleading, is a fact to be pleaded—an ultimate fact, which qualifies an act otherwise not wrongful. Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong. The absence of care
As a result of the application of these principles to code pleading in cases of negligence and to others of kindred character, it is held in this state, and in nearly all of the United States, that it is sufficient to allege the negligence in general terms, specifying, however, the particular act alleged to have been negligently done. (Thompson on Negligence, 1246.) Tested by these rules, the complaint, which was not demurred to, stated facts sufficient to constitute a cause of action.
The case of Spindler v. Milwaukee etc. R. R. Co., decided by the supreme court of Michigan, November 1, 1891, and reported in 42 American and English Railway Cases, at page 192, relied upon by appellant, at first blush seems in point, but an analysis of the complaint by the court shows that the inference drawn therefrom was that the driver of the sleigh was not shown to have relied, or had any reason to rely, on the train remaining still till he could pass, or that it started unexpectedly or improperly when it should have waited, or that it was improperly started. “This,” says the court, “if it existed, would have been a very important element in the case.” Again, the court says: “All that is averred is simply that defendant negligently struck a sleigh at a road crossing, the driver not being in fault.”
In the present case the complaint avers that the defendant’s engine was standing on its track within twenty-five feet of the crossing; that the driver of the street-car stopped, and, upon ascertaining that the engine was not in motion, started to cross the track, and when
The nonsuit was properly denied.
There was evidence tending to show such negligence on the part of defendant, and contributory negligence on the part of plaintiff, as made it proper to submit the question to the jury.
Where the facts are admitted or proven without contradiction the court will determine whether or not they establish negligence, or show contributory negligence; but where the conclusion is open to debate it is one for the jury under proper instructions from the court. (Fernandes v. Sacramento City Ry. Co., 52 Cal. 45; Orcutt v. Pacific Coast Ry. Co., 85 Cal. 291; Whalen v. Arcata etc. R. R. Co., 92 Cal. 669; Wilson v. Southern Pac. R. R. Co., 62 Cal. 164; Davies v. Oceanic Steamship Co., 89 Cal. 280.)
The following instruction was given at the request of plaintiff: “If the jury believe from the evidence that the defendant was guilty of negligence as charged in the complaint, and that the plaintiff was injured thereby, your verdict should be for the plaintiff, and that whether such negligence appears or is proved by the testimony on the part of the plaintiff or by defendant’s own witnesses.” This instruction entirely ignores the question of contributory negligence on the part of plaintiff, and is, therefore, not in itself a complete and correct statement of the law, and the defendant insists that the judg
The second instruction on the part of plaintiff was in part as follows: “The jury are instructed that in determining the question of negligence in this case they should take into consideration the situation and conduct of both parties at the time of the alleged injury as disclosed by the evidence; and, if the jury believe from the evidence that the injury complained of was caused by the negligence of the defendant’s servants, as charged in the complaint, and the plaintiff acted as was reasonably to be expected of a person of ordinary care and prudence in the situation in which she found herself placed, then the plaintiff is entitled to recover.”
The 4th, 8th, 9th, 10th, and 11th instructions asked by plaintiff all contained similar expressions, indicating the right of plaintiff to a recovery, to be subject to the exercise on her part of such reasonable care as a person of ordinary judgment and prudence would exercise under like circumstances.
The second instruction, given by the court at the request of defendant, was as follows:
“ Second. The court instructs the jury that if you believe from the evidence that the plaintiff jumped from the street-car after it had passed from a place of danger,*151 or apparent danger, to a place of safety, and that a person of ordinary intelligence, under like circumstances, would have known that the danger was passed, and would not have jumped from the car at the time plaintiff did, you should find for the defendant.”
■ It will thus be seen that the jury were over and over again instructed in clear and explicit language that the plaintiff was not entitled to recover unless she was at the time of the accident herself exercising ordinary care to avoid the injury of which she complained, and it is not reasonable to suppose that the jury was misled to the prejudice of appellant because the first instruction omitted to say any thing upon the subject of the effect of contributory negligence upon plaintiff’s right of recovery.
We find no substantial error in the record.
Judgment and order affirmed.