Mitchell v. Southern Pacific Railroad
Before: Paterson, Thornton
Synopsis
Negligence — Railway Accident — Burden of Proof. — In an action against a railroad company to recover damages for injuries sustained by a passenger, caused by a train running off the track owing to the negligence of the railroad company, although the burden of proof is upon the plaintiff to establish negligence, yet where the injury is admitted, and the derailment and overturning of the car are undisputed facts, and there is evidence tending to show that at the time of the accident the train, was running down a steep incline leading to the bed of a river, on a new and curved track, at an unusual and dangerous speed, the burden of proving that the injury was not caused by its want of care is on the railroad company.
Id.—Contributory Negligence—Passenger Injured from Platform — Violation of Rules — Construction of Code. — Section 484 of the Civil Code, protecting a railroad company from damages for an injury to a passenger received on or from the platform of a ear, in violation of printed regulations posted in the ear, or of verbal instructions to the passenger, is intended to prevent the imprudent act of standing or riding on the platform, and neither the statute nor the regulation has any application where a passenger is justifiably entering or leaving the cars when injured.
Id. — Attempt to Escape from Platform — Question of Fact. — Where, at the time the accident occurred, the plaintiff was standing on. the platform of the car, and his testimony showed that he had gone there immediately before the accident, in fear that some disaster would occur because of the speed of the train, and that he intended to jump therefrom to the sand, but that the car was overturned as soon as he reached the platform, it is a question for the jury whether the attempt thus made was an unreasonable or rash act, or was one which a person of ordinary care and prudence might do under the circumstances.
Id. — Prudence of Plaintiff —■ Safety of Passengers — Result of Attempt to Escape. — The facts, that a passenger on a railroad train was injured in an attempt to escape from an expected accident, and that those who remained in the car escaped without injury, are circumstances to be considered by the jury in determining whether the injured party acted as a man of ordinary prudence; but where he has acted with reasonable prudence, upon the probabilities of an effort to escape, it cannot be said that the attempt to escape constituted contributory negligence, nor does the inquiry depend upon the result of the attempt to escape.
Id.—Evidence — Action of Other Passengers — Error without Prejudice. —In such a case, it is error to exclude evidence of the actions of other passengers, who remained in the car, and as to whether or not any of them were injured. Such evidence is competent as a part of the res gestm, to show what they deemed prudent conduct. But such error is cured by the admission of undisputed evidence showing that there were only a few passengers in the car besides the plaintiff, and that they all remained in their seats until the car was overturned, and all escaped unhurt.
Opinion — Paterson
Paterson, J. This is an action to recover damages for personal injuries sustained by plaintiff while traveling as a passenger on one of defendant’s trains.
Appellant contends that the judgment and order should be reversed, because plaintiff failed to show negligence in the management of the train, or any defect in the defendant’s railroad track.
It is doubtless true, as claimed by appellant, that in cases of this character the burden of proof is upon the plaintiff to establish negligence on the part of the defendant, and that the mere fact that a passenger was injured while on his journey is not sufficient to raise a presumption of negligence on the part of the carrier. But in this case not only is the injury admitted, but the derailment and overturning of the car are undisputed facts, and there is evidence tending to show that at the time the accident occurred the train was running down a steep incline leading to the bed of a river, on a new and curved track, at an unusual and dangerous speed. This showing was sufficient to throw upon the defendant the burden of proving that the injury was not caused by any want of care on its part. (Boyce v. Cal. Stage Co., 25 Cal. 460; Lawrence v. Green, 70 Cal. 417; 59 Am. Rep. 428; Treadwell v. Whittier, 80 Cal. 574; 13 Am. St. Rep. 175; Breen v. N. Y. C. R. R. Co., 109 N. Y. 297.)
[73]At the time the accident occurred the plaintiff was standing on the platform of the smoking-car, and it is claimed that he cannot recover for the injury sustained by him, and that defendant is relieved from responsibility therefor by the provisions of section 484 of the Civil Code, which reads as follows: “Every railroad corporation must have printed and conspicuously posted on the inside of its passenger-cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any officer of the train, the corporation is not reponsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section.” Plaintiff admitted at the trial that defendant had proper notices, as required by this section, posted in all of its cars, and that he had full knowledge of their contents before the accident. He testified that he had gone out upon the platform immediately before the accident, in consequence of the fear that some disaster would occur; that his attention was directed to the speed of the train as soon as it passed over the top of the grade and began to descend; that the great and unusual speed at which the train was going, taken in connection with the fact that the road was new and temporary, led him to believe that an accident would occur, and that he went out upon the platform intending to jump therefrom to the sand on the inside of the curve, where he believed he would escape with less injury than if he remained in the°car, and that he had no sooner reached the platform than the car was overturned and he was thrown upon the ground; that he had been for a long time in the employ of Wells, Fargo, & Co., had acquired a knowledge and skill as to the movement of trains, could distinguish between the degrees of speed by the motion
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