Wolfskill v. Los Angeles Railway Co.

CHIPMAN, C.

Action for personal injury. Jury trial was waived;- the trial was -by the court, and defendant had judgment. The appeal is from the judgment and frorh the order denying plaintiffs motion for a new trial. The injury occurred at the crossing of Aliso and Alameda streets in the city of Los Angeles. A team of horses, owned by defendant, was being

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■driven by an employee of defendant along Alameda street at a ¡mint where the track of the Southern Pacific Company’s railroad runs along the middle of said street. The driver was going north along the east side of the street, but as he came near Aliso street, noticing a train of ears coming toward him, he crossed the track, for some unexplained reason, to the west side of Alameda street, and continued along that side of the latter street toward the crossing of Aliso street. Plaintiff was a flagman of the Southern Pacific Company, and his duty was to flag -trains at this crossing. Defendant’s evidence showed that plaintiff started from the curb on the west side of Alameda street, and near the crossing of the two streets, to go toward the middle of Alameda street about the time defendant’s horses were approaching the corner. The horses became frightened by the train at that moment coming along Alameda street; the horses shied away from the train and toward the curb, and in doing so the near horse struck the plaintiff and knocked him down, thus injuring him.

The court, in its second and third findings, found in effect: 1. That at the time of the injury the team was not being driven carelessly or negligently, nor at a speed dangerous to the lives or limbs of persons on said Alameda street, and that the driver exercised due care and was not guilty of any negligence; 2. That at the time plaintiff received the injury he was not exercising ordinary care, and was guilty of negligence in this: “That he went in front of said pair of horses as they approached him, and did not look out -to avoid being run against by them, and did not pay attention to the approach of said horses and said wagon, and did not take any care or caution whatever to avoid being run against by said horses.”

The ground of the appeal is that the evidence does not support these findings. It is not necessary that the evidence should sustain both these findings in order to support the judgment. To have found for plaintiff it must have appeared that defendant was negligent and that plaintiff was free from negligence, there being no evidence tending to show that defendant’s conduct was wanton or willful.