Cunningham v. Los Angeles Railway Co.

Negligence—Injury to Infant by Electric Railway Car—Instruction—Inexperience of Motorman—Error—Question of Ordinary Care.—In an action against an electric railway company to recover damages for injuries received by an infant plaintiff from being knocked down and run over by one of the cars of the company, by reason of its alleged negligence, where there was no direct issue upon the employment of an incompetent servant, an instruction to the jury that, in determining whether the defendant was negligent in not stopping its car so as to avoid the injury, they had the right to take into consideration the fact, in evidence, that the motorman “ had only been at work about twelve days,” and “was a new hand on the road,” is erroneous, the defendant not being responsible for slight negligence, but only for a want of ordinary care, and the question whether it was in the exercise of such care must be determined from a consideration of what actually occurred at the time of the alleged negligent act, regardless of any fact affecting the general character of the servant for skill or proficiency in the discharge of his duty, which fact should not have been submitted to the jury.

Id.—Duty of Company to Provide for Safety—Deficient Instruction—Omission of Qualification—Ordinary Care.—An instruction to the jury, in such action, that it was the duty of a person or company operating an electric railway upon the streets of a city to provide “proper cars and appliances, and to provide safe, skillful; watchful, and competent agents or servants to manage the same” is deficient in not further charging that, in performing such duty, the defendant, so far as its obligation to the plaintiff was concerned, was only called upon to exercise ordinary care, and an instruction given on behalf of the defendant as to the degree of care required of its servants, is not the equivalent of such qualification.

Id.—Action of Infant Plaintiff—Improper Instruction—Duty of Parents to Keep Attendant with Young Child—Question for Jury.—In an action for negligence brought by an infant plaintiff, aged eighteen months, an instruction to the jury that the law does not require parents to keep an attendant with their young children, and that they are not required to shut them up, is improper, the question whether such precautions are necessary, under any given circumstances, to constitute ordinary care for the safety of their children, with which parents are charged, being one of fact for the jury, and not for the court to determine as matter of law.

Id.—Contributory Negligence of Parents—Avoidance of Injury— Question for Jury.—Assuming the contributory negligence of the parents of a young child run over by an electric railway car, nevertheless the question whether, notwithstanding such negligence, the defendant could have avoided the injury, when fairly involved in the evidence, is a proper one for the jury.