Perry v. Malarin
Before: Temple
Synopsis
Negligence—Derailing of Street-car by Frightened Horses—Rebuttal of Presumption.—Where the plaintiff was injured by jumping from a street-car which had been derailed from the track by frightened horses, any presumption of negligence from the fact of the accident is sufficiently rebutted by testimony introduced by the defendant showing that there was a perfect track, car, and harness in good repair, gentle horses, and a skillful driver, alert and at his post; and that, while the car was proceeding upon the track, an express-wagon was driven rapidly in front of the team and suddenly stopped, and a man with a bundle jumped suddenly in front of the horses and toward them, thereby startling them and causing them for the moment to become unmanageable, and to derail the car from the track.
Id.—Unforeseen Startling of Horses — Disproof of Negligence.— Where the event which startled the horses could not have been foreseen, and all was done which could have been done by the utmost skill and care to prevent accident after the horses were startled, negligence is disproved.
Id.—Evidence—Previous Runaway of Horse.—The bare statement of a witness that one of the car horses had once run away, without showing when or under what circumstances, or that the defendant knew or ought to have known it, does not tend to show negligence.
Id.—Unusual Speed of Horses.—The mere fact that the horses were going at an unusual speed, where it does not appear that they were going at a dangerous gait, does not tend to prove negligence.
Temple, J. On the 18th of February, 1893, plaintiff and her sister were passengers on a street-car running from Pacific Grove, in Monterey county, to the Hotel del Monte. It was an open car drawn by two horses. Plaintiff sat upon the rear seat. As the car passed the Pacific Ocean House, on Alvarado street, the team shied and pulled the car from the track. Plaintiff’s [366]sister—as she testified—was thrown from the car by the jolt made when it left the track. Plaintiff was not thrown out, but, after the car had been drawn about one hundred and twenty feet, jumped out, and in so doing was injured. From the track the horses moved rapidly along the street, first toward the sidewalk and then the driver was able to pull them in toward the track, when they again moved toward the sidewalk, and were finally stopped when the car was against the curb, having gone about one hundred and eighty feet after the derailment. Had plaintiff remained in the car, as she might have done, she would not have been injured, but she says she jumped out fearing that the car would strike against the curb and be overturned. The street was not paved and was perfectly level. The curb was thirteen inches high.
Defendant operated the street railroad, and plaintiff brings this action to recover damages for the injury which she alleges was caused by defendant’s negligence.
Though defendant does not admit that the rule applies to this case, he accepted the proposition that the mere fact of the accident raises a presumption of negligence, and casts upon the defendant the burden of showing how and why the accident occurred, and that it "was one which he could not have guarded against by the use of the utmost skill, diligence, and foresight. Appellant contends that this was done by testimony which is uncontradicted.
He proved that the track was in perfect condition, that the car was properly constructed and in good order, that the driver was experienced and careful, and that at the time of the derailment he was at his post, holding the reins in one hand and the brake in the other. The derailment was not caused by any defect in the appliances or want of attention on the part of the driver.
His -witnesses also testified that the horses were gentle, well broken, and had been used on the road continuously for about two years, and had never been known to shy or become unmanageable before.
[367]
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