Davis v. California Street Cable Railroad

The Court. Plaintiffs, Samuel Davis and Sarah Davis, his wife, brought this action to recover damages for personal injuries to said Sarah Davis, alleged to have been caused by the negligence of defendant. At the conclusion of the evidence the court, at defendant’s request, instructed the jury to return a verdict for the defendant, which was done, and judgment having been entered thereon, the plaintiffs appealed therefrom within sixty days upon the judgment-roll and a bill of exceptions.

The only point made upon this appeal is that the court erred in directing a verdict for defendant.

The material facts are that in 1891 the defendant was constructing a street railroad on Hyde street, and deposited a large quantity of rails and yokes upon the sidewalk in front of plaintiff’s residence, all of which, except one rail, were removed and used in the construction of the road about four weeks before the accident occurred resulting in the injury complained of.

The rail that was left upon the sidewalk was twenty-eight feet long and three inches high, and one end of it was under a street gaslight. This rail had remained there for about four weeks, and Mrs. Davis not only knew it was there, but had seen children and one Chinaman fall over it. The night the injury was received, at about half-past eight, there was an alarm of fire, and some one on the street cried “ Fire ! Fire” ! The night was dark, and it was raining. Mrs. Davis went out to see where the fire was, and Mrs. Smith, who [136]occupied the upper floor of Mrs. Davis’ house, came down for the same purpose. Mrs. Davis told Mrs. Smith to go back as it was raining, and then started to go out into the street to find out where the fire was, and fell upon the rail and dislocated her shoulder. She testified that she did not know whether or not she ran against the rail; that she knew it was there, but on this night forgot that it was there.

The street railroad was not then completed, and the defendant was then engaged in putting in switches in the same block, and this rail was left upon the sidewalk, the defendant expecting to use it in the construction of the switches.

There was no conflict in the evidence, and the court did not err in directing a verdict for the defendant.

The rule in such cases is well stated by the supreme court of the United States in Delaware etc. R. R. Co. v. Converse, 139 U. S. 472, as follows: “ Undoubtedly, questions of negligence in actions like the present one are ordinarily for the jury, under proper directions as to the principles of law by which they should be controlled; but it is well settled that the court may withdraw the case from them altogether and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character ¿hat the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.”