Chung Sing v. Southern Pacific Co.

OLNEY, J.

This is an appeal from a judgment for the plaintiff for thirteen thousand dollars for personal injuries found to have been suffered by the plaintiff because of the negligence of the appealing defendants. The sole point qrged for reversal is that the verdict and consequent judg- , ment for the plaintiff are not supported by the evidence. There are a number of contentions made by the respondent to the point that the verdict and judgment are not open to review in the particular urged by the appellants, but since we are of the opinion that the appellants’ contention must in any ease be overruled, there is no occasion for considering these contentions of the respondent.

The defendant railroad corporation operates a railroad having tracks on Violet Street, in Los Angeles, crossing Santa Fe Street. The other defendants were members of a switching crew employed by the railroad company. At the time of the accident they were engaged in switching freight-

[611]

cars across Santa Pe Street and one of the cars struck the plaintiff, who was coming along the street, and severely injured him. It is evident that the evidence is sufficient to sustain the verdict, unless (a) it fails to show any negligence on the part of the defendants toward the plaintiff contributing to the accident, or (b) shows affirmatively that the plaintiff was himself guilty of contributory negligence.

As to the first point, there was evidence showing that the car which struck the plaintiff had been “kicked” across the street, that is, given a strong push by the locomotive, and then uncoupled and allowed to proceed under the impetus so given it. There was evidence also to show that there was no one on the car to stop or control it.

[1]

It hardly needs argument to the point that if these were the facts, as the jury was upon the evidence entitled to find them to be, the jury was justified in concluding that the conduct of the defendants was negligent.

[2]

Kicking a car uncontrolled across a public and traveled street in a large city at least permits a justifiable inference of negligence, if nothing more.