SHAW, J., dissenting.
The opinion of the court in this case did not come to my knowledge until several days after it was filed. I deem it proper at this time to state the reasons for my belief that it is erroneous.
The statement of facts in the opinion is both incomplete and incorrect. In this court those facts which the evidence fairly tends to prove in support of the verdict must be taken as true. The plaintiff's, at a point fifty feet from the tracks of the Terminal road, stopped the wagon and looked and listened for a train, it was the best place from which to view the tracks of the two railroads for that purpose. A man passing them from the opposite direction told them no train was in sight. When on the farther side of the tracks he could see the track, in the direction from which the train was coming, for a much longer distance than it could be seen from where the plaintiffs stopped. Albert Hutson, who was driving, continued to look and listen after they again started, but neither saw nor heard the train until the wagon was on the Terminal track and within a few feet of the defendant’s track and on a grade descending toward it. The train was then only about one hundred and fifty feet distant. He could not safely stop on that track, on which another train might be coming. The emergency was sudden and the danger great, and he could not be charged with negligence, as matter of law, under those circumstances, for any. ordinary conduct.
(Harrington
v.
Los
[706]
Angeles Ry. Co.,
140 Cal. 521, 522, [98 Am. St. Rep. 85, 74 Pac. 15].) In the necessary haste, he concluded to attempt crossing before the train reached the place, whipped his horses, and almost succeeded in his design. To have used the brake after whipping the horses would have been sheer folly. No bell was rung. No whistle was sounded. The train was coming at the unprecedented speed of forty-five miles an hour. The statement that its speed was from sixteen to twenty miles an hour is not justified by the evidence, as we must view it, nor can it be said to be sustained by a preponderance.
With regard to the supposed faulty instruction, for the giving of which the judgment is reversed, the court has curiously misconceived its subject, its effect, and its purpose. The law on the subject of the negligence of one about to cross the track of a steam railroad, naturally falls into two divisions: one relating to his rights, the other to his duties. Both are equally clear and well settled. His duty is to look and listen for trains, and to stop for that purpose, if stopping is necessary to do it effectively. His right is to expect and assume that due care will be used in the operation of trains and that the signals required by law will be given. But the lack of such care, the failure to give the legal signals, will not excuse him from the duty to stop, look, and listen, nor remove the effect of contributory negligence in barring his recovery, if he fails in his own duty.
It is not necessary for the court to state the whole law in every instruction. It is practically impossible to state it in every sentence; and the division into paragraphs is a mere method of separating the sentences and subdivisions of a general subject. It is perfectly proper for the court to divide the general subject of the law of the case, and treat the respective divisions in separate paragraphs. This the court did in the present instance, treating chiefly of the rights of the plaintiffs in the instruction in question, and of their duty to be careful themselves in numerous other instructions asked by the defendant.
This instruction tells the jury that, in judging whether or not the plaintiffs were guilty of contributory negligence, they should consider the fact that plaintiffs had the right to assume and rely upon 'the exercise of due care by the trainmen, in giving the required signals and not running at excessive speed.
[707]
Many decisions of this court support this proposition, as the following extracts will show: “Plaintiff was authorized to assume that all other persons using the street would do so with due care. It cannot be imputed as negligence that he did not anticipate culpable negligence on the part of the employees of the defendant.”
(Strong
v.
Southern Pacific R. R. Co.,
61 Cal. 328.) ‘.‘The plaintiff had the right to assume that the required statutory signals would be given by the defendant.”
(Orcutt
v.
Pacific R. R. Co.,
85 Cal. 299, [24 Pac. 661].) ‘ ‘ The plaintiff here was exercising an undoubted right, and she was authorized to assume that all other persons using the street would act with due care. It cannot be imputed as negligence that she did not anticipate culpable negligence on the part of the defendant.”
(Robinson
v.
Western Pacific R. R. Co.,
48 Cal. 421.) “Ordinarily, the person operating the car has the right to assume that the one so approaching is able to and will care for himself, by taking all necessary precautions to observe the approach of the car, and that he will not place himself on its track at such a time as to be injured thereby.”
(Harrington
v.
Los Angeles Ry. Co.,
140 Cal. 520, [98 Am. St. Rep. 85, 74 Pac. 15].) “The deceased had a right to rely upon the usual and required signal of bell-ringing when a car is approaching.”
(Driscoll
v.
Cable R. R. Co.,
97 Cal. 553, [33 Am. St. Rep. 203, 32 Pac. 591].) The same rule has been stated in an endless number of decisions of other states, as well as in many decisions of this state where the right of railway employees to rely on the exercise of due care by others was involved.
(Solen
v.
Virginia etc. Ry. Co.,
13 Nev. 106;
Grippen
v.
New York Cent. R. R. Co.,
40 N. Y. 42;
Philadelphia etc. R. R. Co.
v.
Hummell,
44 Pa. St. 379, [84 Am. Dec. 457];
Newson
v.
New York Cent. R. R. Co.,
29 N. Y. 390;
Tabor
v.
M. V. R. R. Co.,
46 Mo. 353, [2 Am. Rep. 517]";
Texas and Pacific Ry. Co.
v.
Cody,
166 H. S. 613, [17 Sup. Ct. 703]; 2 Thompson on Negligence, sec. 1582; Shearman and Redfield on Negligence, sec. 473; 41 Am. Dig., cols. 2775 to 2784, 37 Am. Dig., col. 448;
Green
v.
Los Angeles etc. Ry. Co.,
143 Cal. 31, [101 Am. St. Rep. 68, 76 Pac. 719];
Lambert
v.
Southern Pacific R. R. Co.,
146 Cal. 231, [79 Pac. 873].) Many other citations could be given to the same effect.
[708]
The duty of the plaintiffs to exercise due care in looting and listening, and the fact that this duty rested on them regardless of any failure of the trainmen to use due care or give signals, is a qualification of the rule stated in the instruction and established by the above authorities. The jury were fully instructed on this point. They were informed that, in ascertaining whether or not á train, was coming, the plaintiffs were required to exercise “such care as a person of ordinary prudence would exercise under the circumstances”; that they must “make use of all their senses” in so doing; that they “must use vigilantly the senses of sight and hearing,” and that if it was necessary to stop in order to hear well, then they must stop for that purpose; that any neglect on their part in these particulars would bar a recovery if it contributed to the injury, notwithstanding the negligence of the defendant may have caused it. And.with regard to the effect of their rights aforesaid upon their own duty, the court instructed the jury that, while travelers in a vehicle approaching a railroad crossing “have a right to rely upon the presumption that railway employees engaged in running trains toward such crossing will use precautions to prevent collisions, yet that such travelers have no right, on that account, to relax in any way the vigilance required of them by law in such circumstances and at such a place. They are under the duty of both listening and looking, and of listening and looking at points and places and in such circumstances that the listening and looking will give them protection. ’ ’
If the instruction quoted in the main opinion is subject to criticism on the ground that it does not state with sufficient clearness the duty of the plaintiff as a qualification of the rule regarding their rights, _ it is supplemented "and fully cured in that respect by the instruction last quoted, which states clearly both the right and the duty of plaintiffs and the fact that negligence of the defendant does not excuse the plaintiffs from exercising due care.
The true rule regarding this qualification is well stated in the main opinion to be that “A traveler has no right to omit any of the care which the law demands of him, upon the assumption that due care will be exercised in the operation of the train.” The authorities cited in the opinion fully
[709]
sustain this statement of the qualification, but the extracts given omit the context, and are consequently misleading so far as they seem to lend support to the idea that it is not the law that the traveler, while not omitting the care due from him,-may rely on the performance of duty by the defendant, so long as due, care on his part does not disclose to him its failure to do so. The cases do not so declare. If the instruction declared erroneous had stated that the plaintiffs had the right to omit any of the care which the law demanded of them, because of their reliance on the care of the defendant, the criticisms would have been deserved. But it does nothing of the sort, and in view of the explicit instructions to the contrary, it could not have been so understood by the jury.
The criticism of the instruction that contributory negligence is to be proven by the defendant by a preponderance of the evidence and to the satisfaction of the jury is not warranted. The instruction is based on the rules of evidence as laid down by the positive mandate of the Code of Civil Procedure. It is conceded that the burden is on the defendant and that a preponderance is necessary, but it is suggested that the jury need not be
satisfied
of the fact. The code declares that they must be satisfied. “That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. .Such evidence alone will justify a verdict.” '(Code Civ. Proc., see. 1835.) The court seems to have feared that the words “to your satisfaction,” might be understood by the jury to mean “beyond a reasonable doubt.” But the jury must be presumed to understand words according to their ordinary meaning.
Rehearing denied.
Beatty, C. J., and Shaw, J., dissented from the order denying a rehearing.