McKeever v. Market Street Railroad

Appeal from a judgment for the plaintiffs, and from an order denying a new trial in the Superior Court of the City and County of San Francisco. Hunt, J.

The Court instructed the jury in effect, that the rule in regard to contributory negligence was confined to cases where such negligence immediately or approximately or directly contributed to the result, and that if the deceased did not exercise ordinary care, and yet did not by the want of such ordinary care contribute to produce the injury, the plaintiff would be entitled to recover; that the deceased, and every other person in the exercise of ordinary care, was entitled equally with the defendant to drive upon or across the street in question, and that the defendant had not any rights superior to those of the deceased in that portion of the public street, included between the track, except when its cars were actually thereon or moving over the same, subject to their right of way; that the mere fact itself, unaccompanied by other evidence that the deceased was upon the track of this company, was not of itself evidence of negligence on his part; and also to the effect stated in the syllabus. The instructions asked by the defendant and refused were to the effect that the jury, under the pleadings (which contain no allegation of special damages), should not allow anything for prospective or any damages that had arisen since the commencement of the suit or that might arise or result in the future from the death of the deceased; also that the ordinary earnings of the deceased could not be taken into account under the pleadings, as there was no allegation that he supported the plaintiffs or earned anything for their support; also that under the pleadings the plaintiff could not recover anything beyond nominal damages. The facts appearing in the evidence were substantially as follows: The deceased was driving his cart loaded with coal up Market street, on the right-hand track of the defendant; his horse was gentle, but old, and a little touched in the wind, and (as one of the plaintiff’s witnesses expressed it), “ when he would get short-winded he would get stubborn, and when he did get stubborn you could not very easily handle him.” That at the place where the accident occurred the horse had stopped, and deceased was standing at the near side of the horse, holding him by the head. Upon the approach of the dummy and cars of the defendant, deceased left the horse’s head and jumped on the cart.

The subsequent occurrence is thus described by Mayor Kalloch: That the first thing which attracted his attention was a man on a cart making a vigorous exertion to get his horse out of the way of a dummy that was coming down the hill. At that time the dummy was about twenty feet from the cart. The man on the cart was whipping his horse. Instantly, there was a collision, and he (Kalloch) got there a moment or two afterwards. Found the horse wedged in between the car and the dummy. That at the time he first saw the cart, it was backing toward the track, and he saw there would be a collision unless the team could be stopped. That just before the collision the horse’s head was turned to the right, at a sort of right angle to the street. That the dummy struck the rear part of the cart, and the wheels acting like a pivot threw it around, so that the horse and thills were projected between the dummy and the car.