Evarts v. Santa Barbara Consolidated Railway Co.

ALLEN, J.

Action for damages on account of alleged negligence. Judgment for plaintiffs, from which defendant appeals.

The case was tried by a jury upon the testimony of the plaintiffs’ witnesses alone, the defendant submitting no evidence. The evidence on the part of plaintiffs tended to show that defendant has caused an excavation to be made in a public street in the city of Santa Barbara, and suffered the same to remain open and unguarded and without signal lights to warn travelers of the danger. That Dr. Evarts, a man about forty-four years of age, a practicing physician, who had engaged in such practice for twenty-two years, while driving upon such public street after dark on the evening of September 18, 1903, was precipitated into such excavation and received injuries from the effects of which death ensued on the second day of October following. Dr. Evarts is shown to have been a man of good health previous to the accident, and to have, been a kind and indulgent father and an attentive husband to the wife, who was an invalid and whose physical condition required much personal care and nursing from the husband. The jury rendered a verdict in favor of plaintiffs for $12,000, for which judgment was rendered. Appellant’s chief contention is based upon specifications as to the insufficiency of the evidence to support the verdict. An examination of all the evidence discloses ample evidence to warrant a verdict in plaintiff’s favor. There was positive testimony and ample facts and circumstances tending to establish that defendant caused the excavation to be made, and there is nothing in the record indicating any authority of the municipality in relation thereto; and, from the record, defendant appears to have made such excavation as a tres

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passer upon a public street. In addition to this, were we. to assume the grant of a privilege for such excavation, no signal or warning lights are shown to have been placed, and no guards placed or precautions taken to notify the traveling public of such excavation; but, on the contrary, their absence is shown. The fact that a witness heard a sudden crash as of “something falling from a height,” that there was heard at the same time exclamations and language usually employed by men in the management and driving of horses, and that immediately thereafter deceased, the horse and a portion of the buggy were found in such excavation, were facts from which the jury might well determine that the deceased had been precipitated into such excavation. Further, that he was in a dazed condition when so found in the excavation; that soon thereafter he complained of pain and injury, was pale, trembling, and unable to attend to his professional duties; that the following day he complained of pain in his left side, of having a smothered feeling, was coughing and spitting up blood; that afterward and before his death bruises about the left side were discovered; that these pains and difficulties increased and continued until his death, which resulted from acute pericarditis, which is shown to be an ailment frequently arising from an injury. From these facts, and from the expert testimony based thereon, it is clear that this man’s death was directly attributable to the injury. The jury was fully justified in determining that the death of this man was proximately caused by the negligence of the defendant as charged in the complaint. There is no-lack of evidence showing a causal connection between the negligence and the death, as was the case in the numerous, authorities cited by appellant.