Cross v. Cal. St. Cable Ry.

Garoutte, J. This is an action for damages for personal injuries. The verdict of the jury was favorable to the plaintiff, and defendant appeals. The plaintiff, a teamster by occupation, and in full possession of his faculties, was engaged in hauling a heavy load of boards down a steep grade on California street in San Francisco. He put on his lock chain in order to hold back his wagon, while he walked and drove the horse. When two or three rods down the hill the lock chain broke. Defendant’s car tracks are situated upon this street. Plaintiff did not stop, or attempt to fix his lock [315]chain, but proceeded with the load down the hill, “zigzagging” in and out within the narrow space between the sidewalk and the car track. This mode of travel, under the circumstances, in order to bring plaintiff and his team in safety to the bottom of the hill, required great care and attention. Defendant’s car approached from the top of the hill, struck the hind wheel of plaintiff’s wagon, swung it around, and squeezed plaintiff between a portion of the dummy and his own wagon. Injuries were received by him, and this litigation resulted.

It is insisted that the motion for a nonsuit should have been granted upon the ground that plaintiff was guilty of contributory negligence: “1. In this, that he continued down the steep grade with a heavy load after his lock chain wag broken, and the evidence shows that the breaking of the lock chain contributed directfy to the alleged injury; 2. That at the time of the accident plaintiff had placed himself upon defendant’s car tracks without first looking to see if a car was coming upon him.” The nonsuit was properly denied. Upon the first point relied on to support the motion, we are not prepared to say that the absence of the lock chain was the proximate cause of the injury, even conceding the plaintiff to have been guilty of negligence in traveling down the grade without such an appliance; and contributory negligence sufficient in law to defeat a recovery must be such negligence as directly contributes to the accident. Aside from this consideration, it cannot be said that it was negligence in law to attempt to descend the hill without the lock chain. The plaintiff testified that the descent could be made safely without the chain, and the descent was safely continued by the team after the collision occurred. When the chain broke near the top of the hill it then essentially became a question of fact for the jury to determine, as to what course the driver of the team should pursue. It was for the jury to say whether the driver, as an ordinarily prudent and careful man, was justified in attempt