McKune v. Santa Clara Valley Mill & Lumber Co.
Before: Henshaw
Synopsis
Negligence — Contributory Negligence—Question of Fact.—If the court is not satisfied that the evidence, as matter bf law, establishes the contributory negligence of the plaintiff, or if it believes that under the evidence touching the conduct of the plaintiff, reasonable minds might differ upon the question whether or not he was negligent, that question is one of fact which it is the duty of the court to allow the jury to determine.
Id.—Frightening of Horse—Negligence of Mill and Lumber Company.—Where a mill and lumber company has negligently piled and maintained lumber upon a public street, in violation of an ordinance, and the occupants of a buggy, driving upon the proper side of the roadway, were compelled to turn around a pile of lumber on the street, and were thus brought close to a railroad track, and then for the first time discovered that there were other piles of lumber that had to be passed, when for the first time they noticed an approaching train, and were caught in a position where they could neither advance nor retreat, nor cross the track with safety, and where they could not move to the roadside away from the approaching train because of the obstructing lumber, whereupon the horse became frightened by the approaching train, and '¡backed upon the track to. the injury of the plaintiff, the question of contributory negligence of the plaintiff is properly left to the jury.
Id.—Unauthorized Obstruction of Highway—Ownership of Lumber— Presumption of Responsibility.—Where lumber piled in front of a planing mill along the outside of a sidewalk was owned by a mill and lumber company, which operated the planing mill, it will be presumed, in the absence of any counter-showing, that it was piled there with the knowledge and consent of the owner, and the unauthorized obstruction of a highway to the injury of another is an act of negligence for which the mill and lumber company is responsible.
Id. — Failure to Comply with Municipal Ordinance.—The failure to comply with a municipal ordinance, or to perform a duty imposed by a municipal ordinance prohibiting the obstruction of a street, whereby the plaintiff was injured, is negligence per ss.
Id.—Instructions—Limitations.—An instruction in regard to the violation of an ordinance is not erroneous by reason of omitting a limitation which is not applicable to the case, or for not directly including the question of contributory negligence, when the instructions as a whole show that the jury was fully instructed upon the doctrine of contributory negligence.
Id.—Husband and Wife—Misjoinder of Parties and Causes of Action—Waiver.—In an action for the recovery of damages for injuries done to the wife, the husband and wife are necessary parties; but where the husband has a separate cause of action for consequential damages to him for his wife’s injuries the wife is neither a necessary nor a proper party, and the two causes of action cannot properly be joined; but, if they are joined, and the defendant fails to demur for the misjoinder, he is conclusively deemed to have waived the objection, aud cannot object to evidence of the husband’s necessary disbursements for physicians and nurses attending his wife, in proof of the allegations of the complaint.
Henshaw, J. Appeals from the judgment and from the order denying defendant a new trial.
Samuel Jones and Elizabeth Jones, his wife, prosecuted this action, alleging that defendant piled and maintained lumber upon a public street of the city of San Jose, contrary to, and in direct and continual violation of, an ordinance of the city of San Jose, and in willful neglect and disregard of the rights, safety, and convenience of persons traveling along the highway. On May 23d, while these piles of lumber were so maintained, plaintiff, Elizabeth Jones, was being conveyed in a buggy driven by one Aurelia Jones along said street. Reaching the first pile of lumber, the driver was compelled to turn around it, and was thus brought close to a railroad track, and then, for the first time, became aware of the approach of a train. Being unable to turn out, or to move away, by reason of the lumber piles, the horse became frightened and backed the buggy into the passing cars, throwing out plaintiff Elizabeth Jones and seriously injuring her, to the damage of plaintiffs in the sum of fifteen thousand dollars. “ Plaintiffs [the complaint proceeds] have been compelled to expend the further sum of six hundred dollars for medical attendance upon plaintiff Elizabeth Jones’ said injuries, and [484]the further sum of three hundred dollars for the attendance of a nurse.”
Defendant’s motion for a nonsuit was denied, and the cause submitted to the jury for decision upon the evidence.of plaintiffs alone.
The motion for nonsuit was properly denied. It is true that when the evidence is unconflicting the question of contributory negligence is often one of law for the court, rather than one of fact for the jury. But if the court is not satisfied that the evidence, as matter of law, establishes the contributory negligence of the plaintiff, or if it believes that under the evidence touching the conduct of plaintiff reasonable minds might differ upon the question whether or not he was negligent, then the question at once returns to the domain of fact, and the duty of the court is to allow the jury to solve it as a. fact.
The evidence disclosed that the occupants of the buggy were driving upon the proper side of the roadway. They saw a pile of lumber in front of them which projected into the street. They could have driven, and did drive, with safety around this first pile, but there was-a succession of piles beyond of which they were in ignorance. The nearest pile shut out their view. The defendant’s mill made considerable noise. Only upon driving around the first pile did they see the other piles, and for the first time noticed the approaching train. The-engineer then, too, first observed them. They were-thus caught in a position where they could neither advance nor retreat, nor cross the track with safety, and where they could not move to the roadside away from the approaching train, because of the obstructing lumber. They tried to get into a passage or driveway between the lumber piles, but could not succeed. As the-engineer testified, they were shut in a box.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)