Green v. Southern Pacific Co.

Negligence—Action eor Death—Evidence—Poverty of Plaintiff.—In an action for a death caused by the alleged negligence of the defendant, evidence of the poverty of one of the plaintiffs, a daughter of the deceased, who was living with him at his death, is not competent, and its admission is prejudicial error.

Id.—Full Age of Dependent Daughter.—The fact that the daughter of the deceased, who was living with him, was of full age, does not entitle her to prove her lack of means of support, as against the defendant, against whom the action is prosecuted by her solely as one of the heirs-at-law of the deceased.

Id.—Repetition of Testimony—Single Exception.—The fact that only one exception was taken to the testimony admitted to prove the poverty of one of the plaintiffs, and that such plaintiff afterward gave testimony on the same subject without objection, does not preclude the defendant from taking advantage of the exception.

Id.—Impeachment of Witness—Insufficient Foundation.—The evidence of a witness cannot he impeached by proof of contradictory statements, unless a foundation is first laid for such impeaching testimony; and a conversation about which the witness was interrogated as having taken place during the progress of the .trial, cannot justify evidence of a conversation had in the preceding year.

Id.—Instruction—Measure of Damages—Loss of Society—Comfort and Care.—An instruction that the jury had the right to take into consideration the pecuniary loss suffered by the death, and also the loss of the comfort, society, and protection of the deceased to his widow and children, is erroneous in not instructing that the plaintiffs can only recover for the pecuniary loss suffered by the death, and that the loss of society, comfort, and care can only he considered for the purpose of estimating such pecuniary loss; and the vice in such instruction is not cured by a separate instruction, given at defendant’s request, that the jury should confine their verdict to the pecuniary loss.

Id.—Neglect to Ring Bell or Sound Whistle Continuously.—An instruction to the jury that negligence of the defendant might he inferred if it did not “ring the bell or sound the whistle continuously for the distance of eighty rods before reaching the crossing,” imposes a greater burden upon the defendant than that charged by the statute, which only requires in the alternative that the whistle be kept sounding at intervals.

Id.—Crossing of Track by Elderly Person—Knowledge of Defendant—Presumption.—Where it appears that the deceased, though an elderly man, was strong and healthy at the time he was killed while crossing a railroad track, if the defendant did not know, or have reason to believe, that he was not in the full possession and enjoyment of his faculties, the defendant had the right to presume that he was able to care for himself, and would take ordinary precaution to protect himself from injury; and an instruction implying that his age and condition called for greater care from the defendant, with nothing in the evidence to sustain such implication, and ignoring the element of knowledge on the part of the defendant, is erroneous.