MacDougall v. Central Railroad

Per Curiam. The case was submitted to the jury, on the part of the plaintiff, upon the plaintiff’s testimony and that of a medical gentleman, who described the injuries she had sustained. The verdict was for the defendant, and, as there was at least a substantial conflict in the evidence introduced by plaintiff and defendant respectively, wre cannot say the verdict was not justified by the evidence.

The first two of the points urged by the appellant are: —

1. “The court erred in instructing the jury that the burden of proof of establishing her case is on the plaintiff, and she must show, ‘that the injury resulted from' the negligence of the defendant without any contributory negligence upon her part.’ ”

2. “The court erred in instructing the jury ‘that plaintiff, if negligent, could not by her own negligence cast upon the person in charge of defendant’s car the necessity of exercising extraordinary care and skill.’ ”

With respect to these instructions, we may remark, first, the burden of proof was on the defendant to show plaintiff was guilty of contributory negligence, unless plaintiff had already shown such negligence; and, second, if plaintiff was guilty of no negligence, still defendant was bound to exercise a great degree of care and skill. (Robinson v. W. P. R. R. Co. 48 Cal. 426; Nehrbas v. C. P. R. R. Co. 62 Cal. 320.)

The portions of the charge above recited were specifically objected to by plaintiff’s counsel as follows: “ Another [ground of objection] is that the instruction as to casting upon the driver extraordinary care or vigilance by reason of negligence, if [433]the jury should suppose any such thing on the part of the plaintiff, is likely to mislead the jury in regard to the question of the degree of extraordinary care and diligence required on the part of the defendant in conveying and letting the plaintiff off the car. Another is that the instruction as to the burden of proof being upon the plaintiff, and that the plaintiff is required to show that the injury complained of resulted from the negligence of the defendant, without any contributory negligence on her part, is not law, and is ambiguous and calculated to mislead the jury.”

The court had charged the jury: “The law imposes upon the defendant the duty of exerting and using the utmost care, foresight, diligence, and skill in the selection and employment of a driver for its car, and in the management, driving, and stopping of said car, and in the taking in and letting out of said car of passengers for hire.” And had also read to the jury from section 2100 of the Civil Code: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, and must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”