Johnson v. Center

California Court of Appeal Dec 20, 1906 No. Civ. No. 318.Published

Before: Hall

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Holding. The court held that the evidence was sufficient to support the jury's verdict of negligence against the defendant, as the engineer had a clear opportunity to avoid the accident after observing the plaintiffs' peril. Furthermore, the court ruled that the trial judge did not err in its evidentiary rulings or in its instructions to the jury regarding contributory negligence.

Issues

Whether the trial court erred in denying the defendant's motion for a nonsuit when the motion failed to specify any grounds.
Whether the evidence was sufficient to support a finding of negligence against the defendant's engineer.
Whether the trial court erred in its instructions to the jury regarding contributory negligence and the 'last clear chance' doctrine.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The motion in this case did not specify any grounds whatever, and the motion was therefore properly denied.”

“The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible.”

“The contention that the verdict is not supported by the evidence cannot be sustained.”

Synopsis

APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. W. G. Lorigan, Judge.

The facts are stated in the opinion of the court.

D. W. Burekard, C. L. Witten, H. W. McComas, and W. A. Bowden, for Appellant.

HALL, J.

Plaintiffs are husband and wife, and brought this action for damages for injuries alleged to have been inflicted on the wife, Hilma Johnson, by the servants of defendant in running a railroad train against a buggy, in which said Hilma Johnson was riding, whereby she was thrown from the buggy and her foot caught under the engine and injured. The action was tried before a jury, and the verdict was in favor of plaintiffs. Defendant appeals from the judgment and from the order denying his motion for a new trial.

At the close of plaintiffs’ case defendant moved for a non-suit, which was denied, but the record fails to show upon what grounds the motion was made, for which reason we cannot say that the court erred in its ruling. The record simply states that at the close of the plaintiffs’ case “defendant moved the court for a judgment of nonsuit in said action”; and that it was argued, denied, and exception reserved, being almost an exact counterpart of the record in

Durfee

Seale,

139 Cal. 603, [73 Pac. 435], where it was said: “The motion in this case did not specify any grounds whatever, and the motion was therefore properly denied.” (See, also,

Silva

Holland,

74 Cal. 531, [16 Pac. 385].)

It is contended by defendant that the evidence is not sufficient to support the verdict, and in this regard it is claimed that the evidence fails to show that Mrs. Johnson was injured by any negligence or fault of defendant, and that it conclusively appears that she was injured as the result of her contributory negligence. We do not think the contention of appellant upon this point can be sustained. It appears from the record that at the time of the accident defendant operated a steam railroad along a public highway known as Alum Rock avenue. Upon each side of the railroad tracks were two traveled wagon roads, the one upon the southerly side, with which this case is mostly concerned, being separated from each other by a ditch and a row of trees. Over the ditch, however, at irregular intervals, were driveways. On the day of the accident

[619]

Johnson v. Center

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Synopsis

HALL, J.

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