Cook v. Clay St. Hill R.R.

Myrick, J.: The defendant is the owner of a street railroad in San .Francisco, running on Clay street, between Kearny street and Van Hess avenue. The cars are propelled by means of an endless cable, and to each car is attached a dummy, carrying the gripping apparatus. Seats are arranged on the sides and at the ends of the dummy for the use of passengers. The railroad has two tracks, the northern track being for cars going up the hill from Kearny street and the southern track being for descending cars. On the fourteenth of June, 1880, John H. Cook, plaintiff’s husband, seated himself as a passenger at the lower end of the seat on the south side of the dummy. A two-horse express wagon, driven by one Williams, had crossed the northern track, and was standing on the southern track, at a point about one hundred and fifty-feet from Kearny street, at the time the dummy in question started; the wagon was so cramped that the horses were headed towards the north track, their heads projecting so far over it that the approaching dummy would have struck them, and the rear end of the wagon pointed obliquely down the hill, also towards the northern track.

As the dummy came up to the wagon, two passengers, seated on the southerly seat, jumped over the back of the scat; as the rear end of the dummy came up, a hind wheel of the wagon collided with the dummy, and Cook received injuries from which he died. This action was brought to recover damages, and the jury returned a verdict for plaintiff for eight thousand dollars. Judgment was rendered accordingly, and from that judgment and from the order denying motion for new trial, defendant appealed.

First—The defendant presents the point that the evidence was insufficient to justify the verdict, and claims that the evidence shows that the collision was the result of carelessness or negligence on the part of the driver of the express wagon, and that the driver of the dummy used due diligence in endeavoring to avoid a collision. There is some conflict in the evidence as to whether the collision was immediately caused by the backing down of the wagon against the dummy, and the defendant insists that as the forward part [608]of the dummy passed the wagon without collision, the wagon must have been backing. There is also a conflict in the evidence as to the distance which would have intervened between the wagon and dummy, if the wagon had remained stationary; one witness says, three or four inches; another, one and a half or two feet, another, two feet, another, three or four feet. The answer of the defendant contains the allegation that “ the said horses attached to said wagon were unmanageable and balky, and that the brake on said express wagon was out of repair and unsuited and unfit for the objects and purposes of a brake.” The dummy driver testified regarding the horses attached to the express wagon: “ My impression was that it was a balky team; I thought it was a balky team; I did not know; there is no dependence to be placed in balky horses; they are liable to scare at anything; I got the im- » pression that it was a balky team as I was drawing up near the wagon, some little time after I started; my mind was still more confirmed that it was a balky team when I got thirty feet than before; I ordered him to turn away his horses ; when he turned away his horses I thought I could go by, and I then started at full speed; when the horses commenced to back I stopped; I tried to stop because I knew that if' I kept on going, and the wagon kept on coming back, that there would be something terrible happen, some hard crushing of the wagon and car if they would run together.” Let it be conceded that the dummy and car could possibly have passed the wagon if the latter had remained stationary, yet, as the wagon and horses were diagonally across the southern track, in the form of two sides of an angle, it being necessary to move the horses in order to pass them, the dummy-driver having observed the position in ample time to stop, as but a narrow space would at best intervene between the wagon and the dummy, as the dummy-driver believed the horses to be balky and perhaps uncontrollable, and as, from the relative positions, the backing of the horses must have forced the wagon against the dummy, it was for the jury to determine whether a proper degree of prudence and caution would not have required, the dummy-driver to stop until the horses and wagon could be moved to a safe distance, rather than to go on, as he says, at full speed, and take the risk