Wiley v. McNab & Smith

BURNETT, J.

This is an action for damages, the gist of which is shown by the following allegation of the complaint: ‘ That on the 10th day of July, 1904, defendant was the owner of a certain truck and team of horses; that on said day, while passing through a gateway, on Bryant street, near Tenth, San Francisco, defendant managed said truck and team negligently and with want of ordinary care and skill, so that, by reason of its negligence and want of ordinary care and skill, defendant knocked the gate and adjoining fence down upon plaintiff.” Plaintiff was quite severely injured, "but the jury found a verdict in his favor for only $250.

The only question seriously discussed by appellant involves the contention that plaintiff was guilty of contributory negligence. We think it is fairly debatable whether the conduct of said plaintiff under the circumstances was that of a reasonably prudent and cautious person, and therefore its determination was properly submitted to the jury, whose conclusion is binding here.

It cannot be said as a matter of law that the position behind the gate assumed by respondent was one of danger. As declared in his brief: “He had worked seven days con

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tinuously as gatekeeper. During that time many teams passed in and out daily, and no accident occurred. He concluded that any reasonably skillful and careful driver could enter the gate without accident. A position is not one of danger if a person occupying it can come to harm only through lack of ordinary skill and care on the part of another.” It is true that the gate had been struck by other vehicles, but there is nothing to show that it was not the result of carelessness or inefficiency on the part of the driver, and plaintiff had no knowledge of such an occurrence. The gate was wide enough for the easy entry of the truck. Respondent was at a convenient place for the discharge of his duties as gatekeeper, and where he was accustomed to stand while the gate was being used, and we cannot say that an ordinarily prudent and cautious person would have taken his station at some other point or would have anticipated such an accident.

Some criticism is made of the action of the court in giving and refusing instructions. But from the condition of the record we have a right to assume that all the instructions given were requested by appellant, and that no requested instruction was refused.