Pell v. Herbert

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor for the sum of two thousand dollars damages for the alleged negligence of the defendant resulting in the death of one Gabino Smith, of whose estate the plaintiff is the administrator.

The two points urged by the appellant are the insufficiency of the evidence to justify the verdict of the jury; and the contention that the verdict is excessive in the amount of its award.

The facts of the case are these: The defendant is a rancher residing in Monterey County. On the morning of September 28, 1913, the deceased, Gabino Smith, who was at that time his employee, came up to his house to wash before breakfast. The defendant was in the act of taking a drink of whisky from a bottle which was sitting on the wash-sink, and offered the deceased a drink, which he indicated his willingness to accept. There was very little left in the bottle from which the defendant had been drinking, so he reached under the sink and got what he apparently supposed was another bottle of whisky, and handed it to the deceased, stating that he guessed it was whisky. The deceased drank from the bottle which was handed him, and immediately after doing so said to the

[732]

defendant, “What kind of a trick did you play on me?” and went presently into convulsions, and died within a few moments. The bottle from which he drank contained carbolic acid.

The foregoing facts were proven at the trial and formed the basis’of the jury’s verdict in plaintiff’s favor.

The appellant contends that the inference of negligence does not arise from the foregoing facts, and that even if such inference does arise, the facts also establish contributory negligence on the part of the deceased sufficient to have defeated the plaintiff’s recovery.

We are unable to agree with either of these contentions. The defendant’s conduct in keeping carbolic acid, a deadly poison, in a whisky bottle without any distinguishing mark or label showing its dangerous and deadly quality, and of intermingling such bottle with such a content with other similar bottles containing whisky or other drinkables; and the act of the defendant in "tendering such bottle containing carbolic acid to the deceased under the circumstances which he himself detailed, were acts of gross negligence amply sufficient to justify the verdict in plaintiff’s favor.