Sutter v. Omnibus Cable Co.

Temple, J. This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant.

Plaintiff recovered judgment, and defendant appeals from the judgment and from an order refusing a new trial.

The point presented here is that there was not only a total lack of evidence tending to show negligence on the part of defendant, but that it was proven by evidence which was not contradicted that the injury was caused by inevitable accident.

The following extract from the opinion of the learned judge of the trial court gives a short and concise statement of the facts in regard to the event: “ Peter Duffey, the said driver, a witness for defendant, explained how the horses came to run away. It seems that defendant keeps its stables at the corner of Third and Tehama streets, where horses are changed to and from the cars, which are propelled by horses on this Third street line. On the day in question, when the defendant’s horses ran away and injured this lad, this said driver was taking his car along Third street, and, when he came to Tehama street, he stopped his car, pulled the pin which holds the pole to the car in front—and to which the horses were attached—swung his team, attached to his pole, around at right angles to the car, and into the portion of the street or roadway lying between the car track and the curbstone of Third street, intending to take the team into the stable and replace them with another and fresh span of horses. When the driver so swung his team around, and from the front of the car, they collided with a team being driven up from behind the car. The team, consisting of two horses, was attached to a wagon, and was rapidly traveling in the same direction as the car, probably following the car, so far as can be inferred from the evidence. The cardriver said: ‘Just as I was swinging my team around a wagon came by, right by the car, and struck my off horse, banging right up against my team, banged the off horse right up [372]against the right one, and they got on a jump/ The horses then ran away, dragging the driver with them, throwing him down, and pulling away from him, and then dashing along Tehama street and injuring the boy as before noted.

“ The driver testified, on cross-examination, that he neither looked nor listened for any approaching team when he unhitched the horses from the car and swung them off from the car tracks into the roadway, where they were struck by the team attached to the wagon. He said, in effect, that it was not his business to look or listen for approaching teams; that he did n't expect a team would run against his horses; that it was the business of approaching teams to avoid a collision with him. It would appear from this witness’ testimony that he swung his car team directly into this approaching team. At any rate the collision was immediate, so he testified, on the swinging of the car team into the roadway.”