Whalen v. Arcata & Mad River Railroad

Temple, C. Appeal from judgment and order refusing defendant a new trial.

The plaintiffs are husband and wife, and bring this [670]suit to recover damages for personal injuries received by the wife.

They aver that defendant’s road crosses the highway, and that defendant so negligently and carelessly kept and maintained the crossing that it was allowed to become grossly out of repair and in an unsafe condition, in this, "that said defendant allowed a space in said crossing unnecessarily large to be and remain between one rail of said road and said crossing, at the point on said crossing on said road w'here vehicles were and are usually driven that while plaintiffs were crossing with a cart, without fault on their part, but by reason of the unsafe condition of the crossing, “ one of the wheels of said cart was caught in said large space between said crossing and said rail herein described, and the said cart was then and there overturned, and the plaintiffs violently thrown to the ground, whereby,” etc.

The court, in effect, charged the jury that the plaintiffs, in order to recover, must prove the allegations precisely as made; that it would not be sufficient to show that the crossing was defective in some other respect, as that it crossed the highway at an angle, or that the rails were too high.

The appellant claims that the evidence shows that the accident was not caused by the alleged defect. But we do not so understand the evidence. It seems to us that the very testimony so confidently referred to as sustaining the position of counsel tends directly and plainly to show that the accident was caused in the precise manner alleged. And so it must have appeared to the jury, which rendered the verdict after an instruction so distinct and positive, and to the learned judge, who, of his own motion, gave the instruction and refused a new trial.

The natural effect of use would have been to deepen the impression near the rail, and perhaps to accumulate earth immediately against it; and it is easy to see how the removal of this earth, shortly before the accident, might, in the absence of the necessary plank, in[671]