Driscoll v. Market Street Cable Railway
Before: McFarland
Synopsis
New Trial—Verdict—Conflicting Evidence—-Review upon Appeal. — The appellate court will not disturb a verdict where there is a real and substantial conflict of evidence on material points, or where there is any real and substantial evidence to support the verdict; though when a jury catches at a mere semblance or pretense of evidence to take money from one party and give it to another without legal cause, the trial judge should set the verdict aside, and if he fails to do so, this court will -grant a new trial.
Negligence — Street-railroads — Injury to Pedestrian. — The owners of street-railroads are to he held to due care in the management of their lines; and if they exercise such care, they are not responsible to a pedestrian who, in a careless, reckless, or absent-minded way, walks suddenly in front of a moving car, and is injured before there is time to stop it.
Id.—Rights of Persons in Charge of Street-car.—The persons in charge of a street-car, upon a clear track, where there is no negligence on their part, have a right to assume that people will not suddenly cross in front of it.
Id. — Death of Pedestrian — Failure to Ring at Street Crossing — Violation of Ordinance. — Where a pedestrian was struck by a street-car and killed at a street crossing, the failure of the person in charge of the car to keep its bell ringing from a point twenty-five feet from the crossing until the crossing was passed, as required by the terms of a city ordinance, is negligence, both as being in violation of a reasonable ordinance, and as being in itself, under the circumstances, careless.
Id. —Insufficient Excuse for Negligence. — It is no excuse for neglect to ring the bell while passing a street crossing that the gripman could not ring it, because his hands were otherwise engaged, and that the conductor was temporarily absent from his post.
Id, — Contributory Negligence — Questions of Pact — Conflicting Evidence — Appeal. — Where the street-railroad company was in default for not giving the proper warning, the question whether the deceased was guilty of contributory negligence in passing the street crossing, whether his negligence was the proximate cause of the injury, is one of fact for the jury; and where there is a conflict of evidence as to the actual conduct of the deceased, and the circumstances under which he acted, at the time of the accident, and there is sufficient evidence to warrant the jury in finding that deceased was not negligent, a verdict against the street-railroad company will not be disturbed upon appeal.
Id.—Duty of Pedestrian — Ordinary Care.—A pedestrian in crossing the track of a street-railroad is only bound to use ordinary care, or that degree of care which people of ordinarily prudent habits could be reasonably expected to exercise under the circumstances of the case.
McFarland, J. On December 10, 1884, Alexander Driscoll was struck and. killed by a car of defendant, at the intersection of McAllister and Larkin streets, in San Francisco; and his widow, as administratrix, brought this action to recover damages for his death. The jury returned a verdict for plaintiff in the sum of $7,775, for which judgment was rendered. The defendant appeals from the judgment, and from an order denying a new trial. The only point urged by appellant is, that the evidence is insufficient to justify the verdict, the positions of appellant being that the evidence does not show that the accident was the result of any negligence of appellant, and does show that it was the result of the negligence of the deceased.
The question presented is certainly one of some difficulty. The rule is well established that this court wall not disturb a verdict wdiere there is a conflict of evidence on material points, and when there is evidence to [563]support the verdict; but such conflict and such evidence must be real and substantial. When a jury catches at a mere semblance or pretense of evidence for the purpose of somewhat equalizing financial conditions by taking money from one party and giving it to the other without legal cause, the trial judge should, without hesitation, set the verdict aside; and in the event of his not doing so, this court will grant a new trial.
Street-railroads are an established feature of modern city life. They are a convenience and a necessity to all classes of people, and are desired by all. But their operation on crowded streets is necessarily attended with considerable danger to pedestrians, — a danger which all people are bound to know, and against which they should protect themselves, by the use of at least reasonable caution. While, therefore, the owners of these railroads are to be held to due care in the management of their lines, they, when exercising such care, are not responsible in damages to a person who, in a careless, or reckless, or absent-minded way, walks suddenly in front of a moving car, and is injured before there is time to stop it. The person in charge of a car, with a clear track before him, has a right to assume that people will not suddenly undertake to cross in front of it; otherwise he could not make any headway, and no street-car line could be successfully operated, either for the profit of the owner or the convenience of the public. And the general rule is, that where the negligence of the injured party is a contributing proximate cause of the accident, he cannot recover damages. But whether or not his negligence did so contribute in any particular case is generally one around which conflicting evidence will be gathered; and in such case a railroad company which was itself guilty of negligence at the time of the accident cannot often, expect to be relieved from an unfavorable verdict.
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