Esrey v. Southern Pacific Co.
Before: Garoutte
Synopsis
Negligence—Contributory Negligence of Plaintiff—Recklessness of Defendant.—In an action for negligence against a railroad company, where it appears that the plaintiff by her own negligence placed herself in a position of danger, but defendant was aware of her danger, and did not exercise ordinary care to protect her, the right of the plaintiff is not barred by contributory negligence, but the law gives to the j injured person a right of action, based upon the principle that a failure i to exercise ordinary care by a defendant under such circumstances amounts to a degree of reckless conduct that may be termed willful and wanton; and when an act is willfully and wantonly done, contributory negligence upon the part of the person injured is not an element which will defeat a recovery.
Id.—Opportunity of Avoiding Accident. —The party who last had a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for the injury.
Id.—Wantonness of Employees of Defendant—Question of Fact.— The question of the wantonness and willfulness of the act of the defendant in moving the train when the plaintiff was seen to be in a position of danger, is a question of fact, which the jury are justified in finding against the defendant.
Id.—Reckless Act—Wantonness.—To commit an act recklessly is to commit it wantonly.
Id.—Amendment of Complaint—Want of Negligence—Statute of Limitations.—The amendment of a complaint, in an action of negligence, so as to charge the acts of the defendant to have been willfully and wantonly done, for the purpose of avoiding the contributory negligence of the plaintiff, the gist of the action being a claim of actual damages for personal injuries inflicted by the moving cars of the defendant, does not alter the cause of action, and the statute of limitations does not run against it until the date of the amended complaint, but only to the date of the commencement of the action.
Id.—Law of Case—Decision Upon Former Appeal—Change of Facts. Where, upon a former appeal, the evidence was considered in the light of the case then before the court, and upon a new trial a different state of facts appeared under an amended complaint, the decision upon the former appeal is not the law of the case, and the court is not called upon to compare the evidence disclosed by the record upon the second appeal with the evidence disclosed by the record upon the former appeal.
Garoutte, J. Plaintiff recovered a judgment for damages against defendant for personal injuries sustained by being struck by a moving car of defendant. Defendant has appealed from the judgment and order denying a motion for a new trial. The case has once been before the court (88 Cal. 399), and a detailed statement of the facts may there be found.
For our present purposes the following facts, as testified to by plaintiff, are deemed material: Upon attempt[544]ing to leave the depot grounds of defendant, and with a view of going around the end of the depot platform, plaintiff crossed the railroad track, and thereupon found herself between the outside rail of the track and the platform of the depot, which platform was about five feet in height; and the width of this intervening space was about three feet. At this moment of time a train came backing toward her, composed of flatcars, which prevented her going further, and for her own safety she stood against the side of the platform, with the object of allowing the cars to pass by. The original width of this space being but three feet, and the cars extending some distance outside and beyond the track, it is apparent that she at this time was in such close quarters as to be not only in an unpleasant position, but it may be said a dangerous one. And it will be further conceded that she found herself in that position by reason of her own thoughtlessness and want of care. One or more cars passed her at this time, and' there is no question but that the two brakemen, and possibly the engineer and fireman, saw her standing in this position. The train was backed a short distance beyond the point where she stood, when it stopped a moment, a box-car was attached thereto, and it then started to retrace its course. When the box-car came to the point where plaintiff was standing, it being wider than the flatcars, and leaving a space next to the platform of not more than fourteen inches, it inevitably struck her, and the injury resulted.
Upon the foregoing state of facts we think the jury entirely justified in finding a verdict in favor of plaintiff. By her own negligence she placed herself in a position of danger, but defendant was aware of her danger and did not exercise ordinary care to protect her from the danger that surrounded her. Under these conditions the law gives the injured person a right of action. This right of action is based upon the principle that a failure to exercise ordinary care by a defendant under such circumstances amounts to a degree of reckless con[545]
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