Carraher v. S.F. Bridge Co.

Vanclief, C. Action to recover damages for a personal injury to plaintiff, alleged to have been caused by the negligence of defendant. The cause was tried by a jury, whose verdict was for the plaintiff, assessing the damages at one thousand dollars, and judgment accordingly.

The defendant has appealed from the judgment, and from an order denying a new trial.

The case was here on a former appeal from a similar judgment, and was reversed on the ground of error in an instruction to the jury. (Carraher v. San Francisco Bridge Co., 81 Cal. 98.)

The defendant had a contract with the board of harbor commissioners to construct a section of the seawall on the water front of the city of San Francisco, which, among other things, required the defendant to fill with sand and rocks a strip between the wall and shore. The sand for this filling was obtained from Black Point, and thence transported by the defendant to the place to be filled (a distance of a mile and a half) on a temporary railroad, by means of a train of twelve to sixteeen cars propelled by a steam locomotive. The rock to be filled in was hauled by teams from Telegraph Hill. Cummings & Co. had a sub-contract with defendant to haul the rock, or a portion of it, and employed the plaintiff as one of the teamsters for that purpose. The road on which the rock was hauled crossed the railroad track at a point where the latter ran along the water front. While plaintiff was returning with the horse and cart he was driving, after having delivered a load of rock, and having approached very nearly to the crossing, the foremost car of the sand train passed over the crossing and frightened his horse. In attempting to back, or turn, the horse, cart, and'plaintiff were precipitated into an open excavation, whereby the plaintiff’s wrist was broken. The engine was not in front of the train, but [179]at the rear, pushing or backing it. Plaintiff testified that when the foremost car came upon the crossing he judged the horse’s head was within two feet of the car. A coal-house and tool-house stood only four to seven feet from the crossing, which, according to plaintiff’s testimony, prevented him from seeing the approaching train until it came within seven or eight feet of the-crossing, and from a diagram furnished by defendant it appears that this may have been true, yet it was contradicted by witnesses on the part of the defendant, The evidence was also conflicting as to whether any signal of the approach of the train was given by whistle or bell. The defendant generally kept a flagman near that point, and the engineer on the train testified that on the occasion of the accident the flagman signaled him that the way was clear. There is also a substantial conflict of evidence as to whether plaintiff’s negligence contributed to his injury. The intervening coal-house on the line of sight, which the evidence strongly tends to prove, is sufficient of itself to establish a conflict on this issue. It follows that the order denying a new trial cannot be reversed on the ground that the verdict is not justified by the evidence.