Dinnigan v. Peterson

ALLEN, J.

Action for damages on account of personal injuries. Findings and judgment for defendant. Appeal by the plaintiff from said judgment, and from the order denying a new trial.

Plaintiff was a passenger for hire upon defendant’s stagecoach, such stage-coach having capacity for nine, but was carrying only six, passengers. The route being traversed was rough and mountainous; the stage was driven by a thoroughly competent and skilled man, and all of the appointments were in perfect condition. The stage thus driven was met by a ten-horse team upon this mountain road, and the driver of the stage undertook to pass the team by turning to the right. The evidence of Pritchard, the driver, is: “ The place outside the road where I drove down was not bad looking from above. As far as I could see, it was a rocky ridge that went down and narrowed up. At the point where we turned in it hadn’t been very bad only for the big loose boulders. Looking on down it got narrower and the hills broke off steep to the right, and the road was very abrupt on the left-hand side also until you got farther down. The embankement was formed by throwing loose rocks out of the road. The rut where I turned in was about eight or ten inches deep and the bank had a gradual slope toward it a distance of eight or ten feet. The slope was not steep, but was gradual and easy. . . . The ridge becomes narrower as you go down until it pinches out. ’ ’

[766]

The defendant, called in his own behalf, testified, and was asked whether it was possible, by the exercise of care on the driver’s part, to have driven the coach into the road at that point without tipping over; his answer was: “I don’t know of any way that he could prevent it.” When asked if, by the exercise of the highest degree of care, by watching everything in the road, the driver could “have driven that eoach in there without turning over,” defendant answered: “Well, I don’t think he could.” To the further question, “Do you think any man could drive that coach in there where he turned off from the road without turning it over ? ’ ’ defendant answered: “I don’t think so.” Again, he says: “Of course, I would try and be safe, but I might be turned over. I say I don’t think it could be done with safety because I had as safe a man as ever drove on the road.” And to the further question: “Then it was a mattér of impossibility to have driven that coach around that cement wagon and gotten in again without turning over; that is a fact, is it not?” Answer: “It seems so.” The driver further testified: “I knew that the ground at the side of the road was covered with loose stones and boulders as far down as I could see. ... I discovered that fact at the time I drove down there, and knew it before. ... A man might reach the road with an empty stage. He might do it one time in ten. ’ ’