Heitman v. Pacific Electric Railway Co.

TAGGART, J.

An action to recover damages for death by negligence. General verdict and judgment in favor of plaintiff for the sum of $4,000, and defendant appeals from the judgment and an order of the superior court denying its motion for a new trial.

Plaintiff sues as the widow of Theodore J. ITeitman, who was fatally injured on April 1, 1906, while riding on a wagon drawn by mules on and along a road or street in the city of Long Beach, known as Anaheim road; the driver of the team being one W. E. Caseboom, who was associated with Heitman in the transfer business. Anaheim road ran east and west and was intersected and crossed by the car tracks of the

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electric railway line of the defendant, which ran over and along a private right of way extending north and south, from said Anaheim road and crossed it at right angles. When the team, which was traveling westerly, reached the crossing of the railway track, one of the defendant’s cars propelled by electricity approaching from the south struck the mules, carrying them with the wagon and occupants some sixty or seventy feet into a cut through which the railway ran at this point, throwing Heitman from the wagon and so injuring him that he died shortly thereafter.

The negligence alleged by the complaint consisted of the car approaching the crossing at an unreasonable and reckless speed and the failure to give any alarm of such approach; a second count charges the negligence to have been wanton. The answer denies negligence and alleges contributory negligence on the part of the deceased.

In respect to the finding of the jury on the negligence of defendant, appellant concedes that the evidence in the case is such that, if this court considers the sufficiency of the evidence to sustain the jury’s conclusion, in the light of the rule that the most favorable inferences that the jury could reasonably draw from the evidence must be indulged in, its appeal in this respect is ineffective

(King

v. Green, 7 Cal. App. 473, [94 Pac. 777]), but urges that the verdict is not supported by the evidence on .the issue of contributory negligence."

The rule of the Roman law from which the doctrine of contributory negligence was derived is short and explicit: “The harm I bring upon myself, I must bear myself.” In determining whether or not the deceased in the case at bar brought upon himself the harm which resulted in his death, it is conceded that the negligence of the driver of the mules is to be imputed to and regarded as the act of the deceased. The same rule conceded by appellant to be applicable to a consideration of its negligence when the sufficiency of the evidence is being reviewed must be applied to the negligence of the deceased. It is primarily for the jury to determine whether the conduct of the deceased and the driver in approaching the crossing was that of ordinarily prudent persons under such circumstances, and we are concluded by this finding, unless the contrary necessarily appears from the undis