Lambert v. Southern Pacific R.R. Co.

HENSHAW, J.

This action was for damages. Plaintiff alleged that as he, with his wagon and two horses, was traveling on the public highway, at a point in the town of Summerland where it crosses the defendant’s railroad, the defendant negligently, carelessly, and wrongfully ran a locomotive on to plaintiff’s horses and wagon, and the plaintiff, killing the horses, breaking the wagon, and injuring plaintiff himself. The defense pleaded both a general denial and contributory negligence. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant moved for the dismissal of the action or fori a judgment of nonsuit, which motions were denied. From the judgment which was rendered upon the verdict of the jury in favor of plaintiff defendant appeals, and with its appeal presents a bill of exceptions.

The evidence is insufficient to sustain the verdict and judgment, and defendant’s motion should have been granted. As might be expected, the strongest testimony for the plaintiff is that given by himself, and from this it appears that at the time of the trial he was a farmer sixty-seven years old, so deaf that he could not hear ordinary conversation, and his

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testimony was given by question and answer in writing. He had resided about a mile and a half from the town of Summerland for about thirty years. He had driven horses all his life and at one time was a stage-driver. One of his horses he had driven over this road daily for about fourteen years; the other horse he had had a few months, and had driven him over the road in a buggy, but not very often. Neither had ever been frightened at the cars, and both had been near the cars. From the town of Summerland the railroad track and the main county road approach each other as one goes eastward, at an acute angle, until, at a distance of about seven hundred feet from the post-office, the highway crosses the railroad. The obstructions to the view of one traveling upon the highway are insignificant, the depot itself being the greatest of them, and one driving towards the crossing can, looking westward, easily see the track for from one quarter to one half a mile. To the left of the highway, and upon the side away from the track, at a point about opposite the crossing, is a road, and to the east of this road, and still opposite the crossing, the grade is such as easily to have permitted one to drive upon it, and thus avoid crossing the track. Upon the day of the accident plaintiff had stopped at the post-office to secure his mail. He left the post-office and started slowly toward the railroad. While driving along he was “glancing at the headlines of his newspaper . . . for a little way—for about twenty-five or thirty yards perhaps.” When he had thus driven about fifty or sixty yards, “all of a sudden my horses became frightened and started off. I thought it was the cars, and I tried to hold them, which I was unable to do. When I had gone about one hundred yards, I looked to see where the ears were. I saw them over my right shoulder. I saw the engine; did n’t see the string of cars; just saw the engine. I was within about thirty or thirty-five yards of the crossing. I pulled on the horses with all the strength I had, but I could n’t hold them. They were soon on the track. There was no place where I could turn off—oil-derricks to one side. When the engine came near to them, my horses started off on a trot. They continued to trot until the collision with the engine. The horses became frightened about, one hundred and fifty yards from the crossing as near as I could tell. I didn’t hear no whistle or no bell. When I saw the engine,