42 P. 1075 | Cal. | 1895
This action is brought to recover damages
from the defendant, a corporation, and a carrier of passengers by railroad, for personal injuries sustained by the infant plaintiff, while boarding defendant’s ear, at Fruitvale, in the county of Alameda. At the trial, and upon the close of the evidence on the part of plaintiff, counsel for defendant moved for a nonsuit, upon the ground that the evidence of the plaintiff showed that he, the said plaintiff, was guilty of contributory negligence. The motion was granted by the court, and judgment entered in favor of defendant for costs. Plaintiff excepted in due form, and prosecutes this appeal from the judgment of nonsuit, and assigns the granting of the motion for nonsuit as error.
It was admitted at the trial that plaintiff was, at the date of the accident, of the age of about eighteen years, and that James Wardlaw had been duly appointed his guardian. Also, that the defendant corporation owned and operated a steam railroad in the county of Alameda, together with engines, ears, etc., running between the villages of Fruityale and Laundry Farm in said county, and was a common carrier of passengers for hire over said railroad. The testimony of plaintiff was to the effect that on Sunday, May 21, 1893, he purchased a
The sole question in the case is this: Was there such evidence of contributory negligence on the part of the plaintiff as to preclude a recovery, conceding the defendant to have been negligent ? Negligence, though variously defined, may be said to be “the failure to do what a reasonable and prudent person would ordinarily do under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done”: Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506. “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want .of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of”: Beach on Contributory Negligence, sec. 7. It is the duty of a railway company, as a common carrier of passengers, to keep its stations and the approaches thereto in such a condition that those having occasion to use them for the purposes for which they are designed may do so with safety. So, too, the duty devolves upon it of preparing all proper means of ingress and egress to and from its ears devoted to the carriage of passengers. This duty performed by the railway company, the reciprocal duty devolves upon one who would take passage by the cars to use his natural faculties in selecting such means and place of access thereto as have been provided for that purpose, and as promise immunity from danger. Not to do so is evidence of negligence on the part of the passenger, and where, as in the present case, the plaintiff went upon the side of the car opposite the platform, and presumably not the place arranged to receive
As a general proposition, cases of negligence (to which those of contributory negligence form no exception) present a mixed question of law and fact, in which it devolves upon the court to say, as matter of law, what is or amounts to negligence, and upon the jury to determine, as matter of fact, whether or not, in the particular case, the facts in proof warrant the imputation of negligence. Where, however, the facts are undisputed, and the inference of negligence is irresistible and not open to debate, doubt or rational difference of opinion, the question becomes one of law to be passed upon by the court: Dufour v. Railroad Co., 67 Cal. 319, 7 Pac. 769; Long v. Railroad Co., 96 Cal. 269, 31 Pac. 170; Jamison v. Railroad Co., 55 Cal. 593; Van Praag v. Gale, 107 Cal. 438, 40 Pac. 555; Maumus v. Champion, 40 Cal. 121; Davis v. Button, 78 Cal. 247, 18 Pac. 133, and 20 Pac. 545; Meeks v. Railroad Co., 52 Cal. 602; Glascock v. Railroad Co., 73 Cal. 137, 14 Pac. 518; Holmes v. Railway Co., 97 Cal. 161, 31 Pac. 834. That plaintiff’s negligence was the proximate cause of his injury needs no argument, and there is no evidence of wanton or willful negligence to bring it within the purview of that class of cases of which Esrey v. Pacific Co., 103 Cal. 541, 37 Pac. 500, is a fair sample. The gist of that ease is involved in a single paragraph, as follows:
“The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered responsible.”
In the present case there is nothing to indicate that defendant had any knowledge of the perilous position of plaintiff. Its negligence consisted in backing its engine against the train without a warning signal, and for this negligence plaintiff is not entitled to recover because of his own negli
¡We concur: Vanelief, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.