Davey v. Southern Pacific Co.
Before: Beatty, Fleet, McFarland
Synopsis
Negligence — Excavation at Railway Crossing — Pleading — Public Street—Evidence of Licensed Footpath—Variance.—In an action against a railway company for negligence, where the complaint charged that the negligence consisted in causing a drain to he opened and exea-' vated beneath the track at the crossing of a public street, and thereafter negligently leaving it open and unprotected, and in a dangerous condition for the whole distance across the street, and that plaintiff was injured by ignorantly falling into such excavation at night-time, evidence offered to show an injury resulting from such excavation made upon the private property of the defendant, but at a point where plaintiff and others were privileged to pass over its track by a footpath crossing its right of way, presents a material variance between the pleadings and proof, which justifies an exclusion of the offered evidence.
Id.—Exclusion of Evidence—Grounds of Objection — Review upon Appeal—Reasons for Ruling Immaterial.—The fact that the excluded evidence was not objected to in the court below, upon the ground of variance between the pleading and the proof, hut only on the general grounds that the evidence was irrelevant, immaterial, and incompetent, does not constitute sufficient reason for reversing the ruling of the court, which will be sustained upon appeal as correct in law, regardless of the reasons or grounds assigned for the ruling in the court below, and regardless of what objections were made to the evidence in that court.
Id.—Objections to Evidence—Reasons for Exclusion—Exclusion Distinguished from Admission—Intendments in Favor of Judgment. An objection to evidence is a mere reason offered for its exclusion, and if the court decides correctly in rejecting the testimony for any other reason which might have been urged, its ruling must stand upon appeal, and in such case it is not important whether the best objection was made, or whether any objection was made; but where testimony is admitted against objection, the party complaining of such ruling must confine himself to objections specifically taken at the trial and stated in the record — the distinction being between the case of a party seeking to reverse a judgment, and that of a party resisting the attempt, and springing from the rule that all intendments run in sup. port of the judgment.
Opinion — Fleet
Van Fleet, J. Appeal by plaintiff from a judgment of nonsuit and an order denying a new trial.
The action was for damages for personal injuries, and the complaint alleged in substance that defendant operated a railroad upon a public highway in Alameda county, known as Stanford street; that there was a culvert or drain crossing said street and extending under the tracks of defendant’s road, which was securely and safely covered with planking and earth; that defendant caused this drain to be opened and excavated to a greater depth and width, and thereafter negligently left it open and unprotected, and in a dangerous condition for the whole distance across said street and under defendant’s track. That while it remained in this dangerous condition, plaintiff, without knowledge thereof, in proceeding, in the night-time, to “ cross said railroad track, on said street,” fell between the rails of said track into the excavation, and received the injuries of which she complained.
At the trial, plaintiff, without amendment of her com[328]plaint, offered evidence tending to show that the point where the drain or culvert crossed beneath defendant’s track, and where the accident occurred, instead of being, as alleged, on a public street, was, in fact, on the private right of way of the defendant, running over land admittedly owned by it in fee, but that at the point in question there was a footpath crossing said railroad, which was then, and had been for many years, constantly and continuously used by the people of the neighborhood, under circumstances such as authorized the inference that it was so used by the consent and license of the defendant.
This evidence was all excluded under the objection of the defendant that it was “ irrelevant, immaterial, and incompetent,” and, the plaintiff resting without offering other proof, the nonsuit followed.
The only question arising is. whether this evidence was properly rejected, since, if it was, the nonsuit was logical, and the judgment and order should be affirmed.
' In support of the ruling, the respondent now urges that the evidence was properly rejected, because it did not tend to establish any issue joined by the pleadings; that the complaint sought to charge the defendant for injuries inflicted through its negligence in opening and leaving exposed and unprotected a dangerous excavation upon a public street; while the case sought to be made by the offered evidence was that of an injury resulting from such an excavation made upon the private property of. defendant, but at a point where plaintiff was privileged to pass by the defendant’s license.
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