Meeks v. Southern Pacific Railroad
Before: Ross
Synopsis
Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Eighteenth District Court, San Bernardino County. McNealt, J.
A petition for rehearing in Bank was filed in this case, after the decision, and denied.
The greater part of the argument of counsel turned upon questions of fact, and is omitted.
The Court, upon the motion of plaintiff, gave the following instruction, the fifth paragraph being the portion of the instruction referred to in the argument of appellant’s attorneys: One of the questions submitted to you is, whether the injuries of plaintiff were caused through the negligence of defendant’s employees.
It is a general rule of law, that where a plaintiff has contributed to his injuries, by his own negligence, ho cannot recover for such injuries, though caused to him in part by the negligence of others. But there may be cases where the negligence on the part of the other party may be so great and gross, and the relative situation and circumstances of the parties such, that the law would hold a defendant responsible, even though the plaintiff may himself also have been at fault.
In the first place, the law requires that defendant should have on each locomotive engine a bell of twenty pounds weight, and that it be rung at a distance of at least eighty rods from the place where the railroad crosses any highway, and be kept ringing until it has crossed such highway. And if plaintiff was upon a public highway, and the defendant’s engine was approaching this highway, without its bell having been rung as above stated, and it ran over said plaintiff while upon such highway, then defendant would be liable to him for his injuries, unless it appears that plaintiff was guilty of want of ordinary care in causing or bringing about such injuries, or his parents have been guilty of the want of ordinary care and prudence in protecting and looking after him. Ordinary care means that degree of care and prudence which men of common understanding usually exercise about their own affairs. But in case of very young children, ordinary care means such care as children of that age, and of such discretion and understanding as is common to children of that age, are able and do usually take of themselves. But you should bear in mind, that if plaintiff’s parents were negligent, and did not use ordinary care and prudence in protecting and looking after him, then any injury caused to him by such neglect would be the same as though it occurred to him through his own neglect.
But even though you should find that plaintiff, either through his own or his parents’ neglect, was upon defendant’s railroad track, and that he there negligently and carelessly exposed himself to be run over by its engine, still, if you should believe that he did not know of the approach of the train in time to have avoided the injury; and you also believe that the employees having charge of the train learned or knew of any obstruction upon said track, or knew any fact in connection therewith, which afterwards proved to be plaintiff himself; and such, knowledge or information was such as would have put a man of ordinary prudence on bis guard, and would have caused a person of such ordinary prudence to have stopped said train; and that after acquiring such knowledge, said emyloyees could have stopped said train, by the use of ordinary exertion and care, in time to have prevented the injury, and they failed to do so, and thereby caused said injuries—then you should find a verdict for plaintiff. But if you should not find the facts to be as thus stated, and you should find that plaintiff or his parents, by his or their neglect, contributed to his injuries, then you should find for defendant.
Ross, J.: At the time of the injury for which this action was brought, the plaintiff, an infant of between six and seven years of age, was residing with his parents near the railroad of the defendant, and but a short distance from where a public highway crossed the railroad track. There is testimony in the record tending to show that shortly before the accident the plaintiff was at play in the yard of his parents with another boy about nine years old, the son of a Mrs. Poole. That this lady and the [517]plaintiff’s mother were in the house, when Mrs. Poole sent her son to hitch a horse—it being necessary for him to cross the railroad track in order to do so. That the plaintiff followed young Poole, and on reaching the track became dizzy, and fell down on it at a point about fifteen feet from where the highway crossed the track. That he remained there either in that condition or asleep until, shortly afterwards, a construction train of the defendant came along, on an up-grade, at the rate of about eight miles an hour, and crushed one of the plaintiff’s feet, necessitating amputation, and otherwise seriously injuring him. It also appears that the plaintiff had, on two or more previous occasions, fallen on the ground dizzy, and then asleep, of which circumstance his mother was aware.
When the case was last here (Meeks v. S. P. R. R. Co. 52 Cal. 604), the facts, as made to appear, and on which it was held that the plaintiff was not entitled to recover, were thus stated by the Court: “ The plaintiff, an infant of some six years, seems to have been permitted by his parents to make use of the roadway of the defendant as a play-ground, and to lie down on the railroad track unattended. As to whether he was asleep upon the track, or awake, there is some conflict in the evidence. But this is not material; for in either case, such conduct amounted to negligence per se, which would defeat a recovery by the plaintiff here. It should be observed, in this connection, that there is no evidence whatever of the lack of diligence and due care upon the part of those in charge of the train. The plaintiff was lying on the track, parallel with the rails; he was discovered by the engineer and lookout at some distance ahead; but, notwithstanding a continued scrutiny exercised by them, they were unable to discern that the object at which they were looking was other than a brush, or some in-, significant obstruction upon the track. When they did discover that a child was lying there, they used every endeavor to slow up the train, but it was then too late to prevent the accident by any, even the utmost, effort upon their part.”
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