Strong v. Sacramento & Placerville Railroad
Before: McKinstry
Synopsis
Contributory Negligence—Railroad.—Action for damages for injuries alleged to have been caused by the negligence of defendant’s servants. The plaintiff was driving his wagon at a slow trot towards the railroad crossing upon a street which was crossed by the defendant’s track; and upon approaching the track his horses were frightened by the passage of the locomotive and ran away, throwing the plaintiff from the wagon and seriously injuring him. It appeared from the evidence of the plaintiff that the street was built up on each side, and lined with piles of lumber in such a manner that a train upon the track could not be seen until the plaintiff approached very near to it; and also that the engine bell was not rung as required by Section 486, Civil Code.
Held: The evidence did not show such contributory negligence as to justify a nonsuit, or a reversal'of the order denying a new trial.
Id.—Id.—The rule is not that any degree of negligence, however slight, which directly concurs in producing the injury will prevent a recovery; but that, if the negligence of the plaintiff, amounting to the absence of ordinary care, shall contribute proximately in any degree to the injury, the plaintiff shall not recover.
Id.—Id.—Case Distinguished.—Had the plaintiff been where the track was ordinarily visible, but some transitory obstacle impeded his vision— as the clouds of dust, in Fleming’s Case (49 Cal. 253)—it might have been his duty to wait until the obstacle was removed. But here plaintiff’s view was cut off by permanent erections; and whether he was properly cautious after he reached a place from which he could see the track was a question of fact as to which the Court can not say the jury found wrongly.
Id.—Id.—It was argued that the jury disobeyed the following instruction: “If M. street was obstructed by lumber on the sides thereof at the point where it united with Front street, and plaintiff drove through M. street nearly on to defendant’s railroad track on a trot, and was driving at a trot when his horses were frightened, and was seated on or within eight inches of the bottom of the wagon, so that he could not see over the rumps of his horses, and could have heard the approach of a locomotive or train if he had been driving at a walk, then he was guilty of contributory negligence, and cannot recover.”
Held: The verdict does not prove this, because the jury may have found that plaintiff could not have heard the approach of the locomotive.
Id.—Id.—Instruction.—The Court refused the following instruction (taken from Shearman and Redfield on Neg., § 481: “ The rights of a traveler on a street or highway at a point where it is crossed by a railroad are subordinate to those of the railroad company so far as to require the traveler to give way to any train which is in sight or hearing.”
McKinstry, J.: There was certainly a very substantial conflict in the evidence with reference to negligence on the part of the defendant, and the court below denied a motion for a new trial.
The question whether plaintiff was so plainly guilty of contributory negligence as that the Court below should have [328]granted a nonsuit, or new trial, is to be determined—as such questions must always be determined—by the particular circumstances of the case. Plaintiff had a right to drive upon “ M ” street, and to cross the track at the foot of that street, provided he adopted every reasonable precaution against injury from moving trains. There was evidence that “ 11 ” street was built up on each side, and lined with piles of lumber, in such a manner as that a train upon the mill track could not be seen until plaintiff approached very near to the track. What should he have done to avoid the imputation of negligence ? The engine bell was not rung as required by Section 486 of the Civil Code. This must be assumed in this Court because there was testimony to that effect. Nor can it be presumed, as against the verdict, that the noise of plaintiff’s wagon, as his horses were proceeding upon “ a slow trot,” would have prevented his hearing the bell, had the bell been rung. Plaintiff had a right to rely upon the performance by those on the locomotive of every act imposed by law upon them when approaching a crossing. In the legal sense, he was innocent of negligence, unless there was a want of ordinary care and prudence on his part. The rule is, not that any degree of negligence, however slight, which directly concurs in producing the injury will prevent a recovery; but, if ,the negligence of the plaintiff, amounting to the absence of ordinary care, shall contribute proximately, in any degree, to the injury, the plaintiff shall not recover. (Robinson v. W. P. R. R. Co., 48 Cal. 423.)
A very timid or cautious person would not, perhaps, have driven in the direction of the railroad, knowing that a train might pass along the track, and that the warning bell might not be sounded. But the question is: Did the plaintiff .exercise ordinary care and prudence in doing what he did ? The degree of caution required is relative to the risk; but no person is bound to assume that another will abandon any reasonable precaution, or violate the obligation imposed upon him by the laws of the land. Plaintiff was authorized to assume that all other persons using the street would do so with due care. It can not be imputed as negligence that he did not anticipate culpable negligence on the part of the employees of defendant. (Shear. & Red. on Nog., § 31.) He had
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