Noyes v. Southern Pacific Railroad

Beatty, C. J. This is an action brought by the administrator of one De Mattos, to recover damages for causing his death.

The plaintiff was nonsuited by the superior court, and his appeal from the judgment presents two questions: 1. Did the evidence introduced by the plaintiff in the superior court make out a prima facie case of negligence on the part of the defendant? and if so, 2. Did such evidence show that De Mattos was himself guilty of contributory negligence?

The following brief statement of the facts which the evidence on the part of the plaintiff proved, or strongly tended to prove, is extracted from the brief of bis counsel, and is in every particular sustained by the record: —

" On the twenty-sixth day of July, 1886, the deceased, [289]Manuel F. De Mattos, was run over and killed by an engine on defendant’s road, near Port Costa. At and for many years before that time, the defendant owned and operated a railroad running from Port Costa, along the margin of the Straits of Carquinez, in a southerly direction. At some distance southerly from Port Costa, on the line of the road, were located certain extensive grain warehouses, called the Nevada Docks. There was a double track running from Port Costa to these docks, — one the main and the other the switch track. Going from Port Costa to the docks, the main track is on the right and the switch on the left hand. The width of the roadway is not more than sufficient to accommodate the two tracks, being only twenty-four feet. On the right, and but four feet from the end of the ties of the main track, rises an abrupt, steep bluff, at the foot of which was dug a drainage ditch, while on the left the ties projected to the water’s edge.

“ Mr. Edgar De Pue had been for more than two years engaged by the defendant as a contractor, to load and' unload their cars at these docks, employing at times in this business as many as one hundred men. To facilitate the operation of loading and unloading the cars, the defendant had been in the habit of sending daily two locomotive-engines from Port Costa to the docks. On their way to the docks, these engines were accustomed to carry some of the hands engaged in loading and unloading; but by far the larger part of the force daily found its way from Port Costa to the docks, and back again after their day’s labor, by walking along the space between the tracks. There was no road, and no means, except by the railroad track, to reach the docks from Port Costa. The deceased, De Mattos, was one of the men thus employed by Mr. De Pue.