62 P. 308 | Cal. | 1901
Lead Opinion
Upon the argument following the rehearing in this case, it was urged, first, that the evidence showed beyond a conflict that plaintiff was guilty of contributory negligence. This matter is considered in the opinion heretofore rendered in Department, and the conclusion was there expressed, that the question of the contributory negligence of the plaintiff was one which, under the facts, was proper for the determination of the jury. Further consideration serves but to confirm the soundness of the Department's conclusion in this regard.
Appellant's second complaint is, that the following instruction proposed by it was refused by the court: "A defendant cannot be charged with damages for injury to a plaintiff, notwithstanding the contributory negligence, if there be such, of the plaintiff, unless the danger of the plaintiff was actually known to the defendant in time, so that the injuries could have been avoided by the exercise of ordinary care; and a defendant, under such circumstances, is not liable in damages, merely because he ought to have known of the plaintiff's danger, and could have known of *660 it but for remissness on his part; a defendant in such a case must have actually known of the plaintiff's danger. If, therefore, the plaintiff in this case, by using her senses with ordinary care as she approached the track, could have observed the car moving on such track in time to avoid danger, but failed to look or to listen, in the exercise of ordinary care, even though you should find that the defendant did not know of her presence prior to the accident, and should further find that the defendant, by keeping a lookout, or using any other precaution in the exercise of ordinary care, could have made itself aware of her danger, your verdict, none the less, should be for the defendant."
This instruction, it may be conceded, is a correct exposition of the law governing the rather rare and exceptional cases to which it applies. (See Herbert v. Southern Pac. Co.,
Indeed, reading and considering the instructions as a whole, they omitted no point of law to the giving of which defendant was entitled, and were as favorable to the defendant as justice could permit.
Therefore the opinion heretofore rendered in Department is adopted and approved and the judgment and order appealed from are affirmed.
Harrison, J., Van Dyke, J., Garoutte, J., McFarland, J., and Temple, J. concurred.
The following is the opinion rendered in Department One, September 17, 1900: —
Addendum
Judgment for plaintiff for one thousand dollars, from which and from an order denying it a new trial defendant appeals.
The plaintiff, who was twenty-six years of age, and had been employed as a cook in the vicinity for some two years, at eleven o'clock at night was proceeding on foot, in a westerly direction, on the south side of Sacramento Street, between Central Avenue and Walnut Street, and in crossing the track of the defendant on the sidewalk in front of its car-barn, she was struck by a cable-car as it was approaching the barn door, knocked down, and as a result her arm was broken, and she was otherwise bruised and injured. The defendant contends that the verdict in plaintiff's favor for one thousand dollars is contrary to the evidence; that there was no evidence to show that defendant was negligent; and that the evidence, without conflict, showed that the injury was the result of plaintiff's want of ordinary care. *662
The evidence warranting the jury in their conclusions that the defendant was negligent in connection with the accident is to be found in the testimony of its own employees, as well as in that of the plaintiff.
The car-house is in the middle of the block, between Central Avenue and Walnut Street, on the south side of Sacramento Street. To the east of the car-house, and between it and Central Avenue, is a vacant lot, across which, from the southeast to the northwest, runs a path, which reaches the sidewalk on Sacramento Street about seven feet east of the northeast corner of the car-house. It is about fifty-six feet from this corner of the building to the door of the house, and through this door run two car tracks, the one curving sharply to the right and the other to the left, both connecting by a switch with the nearest of the two main tracks running along Sacramento Street. There is also a switch track connecting the two main tracks just to the west of where the westernmost curved track from the car-barn connects with the southernmost main track. The sidewalk in front of the car-house is about fifteen feet wide, and it is about twelve feet from the curb to the nearest rail of the main track running along Sacramento Street, and it is about thirty feet from where the curved track connects with the main track to the sidewalk following the curve.
It appears without conflict that the car had just come from the ferry, had passed the barn, and was switched back from the north to the south track, and on that track ran down to the second switch, where it was stopped while the conductor went down and looked into the barn to see if there was a car in the way, and also to see if the sidewalk was clear of people, as he says. He then returned to the second switch, raised the lever, and on his signal the gripman let the car run backwards by gravity into the barn, intending soon to return to the main track by the right-hand curved track, and make another trip to the ferry. It was while the car was thus on its way across the sidewalk into the barn, going at the rate of three miles an hour, that the plaintiff was struck and injured. The conductor, while at the switch, and after the car had passed him, was in such a position that he could not see any person approaching the curved track on the sidewalk from the east, and the gripman, being in the grip space at the open end of the car, could not, as he says, see whether the sidewalk *663 was clear or not. Neither the conductor nor gripman, according to their testimony, saw the plaintiff at any time until after the car had knocked her down. The plaintiff testifies that she came to Sacramento Street by the path across the vacant lot, and first saw the car that struck her when she was opposite the northeast corner of the barn; that she walked on and was on the curved track in front of the barn when she first knew that the car was not going down Sacramento Street; that the car was then so near her, that she could not get away, though she tried to do so by stepping back. She says: "I was just on the track, like this, and I saw the car coming, and I stepped back and tried to get back, but I did not get clear of the track enough, and the car struck me, and I fell on my left side, and my hand was doubled up under me — my left hand — and the wrist was broken. I lay on the sidewalk for some minutes, when some men came out of the car-house and brought me in there. No warnings or signals had been given me, nor had any bells been rung, or notice given that this car was coming off the track onto this curve; there was nobody present to warn me at the time. I could not tell who was on the car; I did not see any one. My eyesight is good."
We think the jury was fully warranted by the evidence in their conclusion that the injury of plaintiff was the result of defendant's negligence in having no one where they could keep a lookout and endeavor to avoid running over people on the sidewalk. Certainly, we cannot say, as a matter of law, that it was negligence for plaintiff to endeavor to cross the track as she did.
"The rule is, that negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence. This proposition has been frequently declared by this court. (Fernandes v. Sacramenta etc. R.R. Co.,
The instructions requested by the defendant and refused by the court, so far as they were sound and pertinent to the case presented by the evidence, were properly refused, because they were, in substance, already given. Some of the instructions refused were not pertinent; for instance, it was unnecessary to enlighten the jury concerning any rule as to negligence not contributing proximately to the injury, because it is plain that if plaintiff was negligent at all, such negligence contributed proximately and directly to her injury. *665 It was unnecessary to confuse the minds of the jury with any distinctions that did not naturally arise in the case.
The defendant objects to the following part of an instruction given at plaintiff's request, to wit: "If you find that plaintiff was guilty of negligence in trying to cross the track, and then changing her mind and turning back, yet if defendant's employees, by the use of ordinary care, discovered her danger in time, and had a clear opportunity to stop the car thereafter, or otherwise prevent the accident, then trying to cross or turning back, if any, was not contributory negligence, on the part of plaintiff, but the later negligence of defendant's employees, if any, is the proximate cause of the injury."
The objection is, that it assumes that there was evidence tending to show that the employees of defendant knew of plaintiff's presence prior to her being struck. There is no objection to the instruction on the ground that it is not sound in law, and we think none can properly be made. As to the assumption of evidence in the instruction, we think counsel had a right to argue to the jury that the employes were interested witnesses, and though they both testified that they did not see plaintiff before her injury, yet, there being no obstruction to the view, the conductor must have seen her from where he was at the switch before the car passed him, if he was looking for approaching pedestrians, as his testimony would seem to imply. A basis for the argument was laid in the cross-examination of the conductor. The plaintiff was entitled to the instruction on the theory developed by this cross-examination. We think the instructions given by the court covered the case as developed by the evidence, and when read together they will be found free from error.
The verdict for a thousand dollars was not excessive. Plaintiff's arm was broken near the wrist, and was kept in splints for two months. It was three months after the injury before she could return to her work, and then she was compelled to favor the broken arm. At the time of the trial, eleven months after the injury, the plaintiff testified: "My left hand was the one that was hurt; it has recovered its former size and shape; it is not as strong as the other. I use the other as much as I can, and favor this one, because if I try to lift anything I can't do it, and always, if there is a *666 change of the weather, and it is cold, rheumatism sets in, and I get a cold in the hand on the change of the weather."
The judgment and order should be affirmed.
Smith, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.