Clark v. Bennett
Before: Henshaw, McFarland
Synopsis
Negligence—Collision oe Wagon with Street-car—Contributory Negligence oe Traveler—Question for Jury.—In an action for injuries caused by the alleged negligence of a street railway company in causing a collision with plaintiff’s wagon while crossing the track, if the facts do not plainly and inevitably point to the contributory negligence of the plaintiff, and do not show that the jury were hound to find that his acts after attempting the crossing constituted contributory negligence, the question as to his contributory negligence is for the jury; and it cannot be said, as matter of law, that he was guilty of contributory negligence merely because he attempted to cross the street railway track with his wagon when the car was approaching.
Id.—Care Required of Traveler Crossing Street Railway.—A traveler crossing a street railway track when a car is approaching cannot be held to exercise the very highest prudence and judgment, and is not required to exercise the same degree of care that is required in crossing a track upon which a heavy steam railway train is traveling at a high rate of speed. It is sufficient if, in crossing the street railway, he exercises that degree of care and prudence and good sense, which, in such a situation are exercised by men who possess those qualities in an ordinary or average degree.
Id.—Negligence oe Street Railway Company — Improper Rate of 'Travel—Power to Prevent Collision-—Conflicting Evidence.— Evidence tending to show that the street railway car at the time of the collision was traveling faster than the prescribed limit, and that those in charge of the ear, after they discovered the position of plaintiff’s wagon in crossing the track, could, with ordinary diligence, have prevented the collision by stopping the car before it reached the crossing is sufficient to warrant the jury in. finding that the employees of the car were guilty of negligence, notwithstanding conflicting evidence to the contrary.
Id.—Relative Rights to Use of Street and Track—Instruction.— An instruction that “a street railroad has only an equal right with the traveling public to the use of the street whereon its track is built,” though it would better be modified by recognizing the superior right of the street railway company to use its track as against obstructions needlessly remaining on the track, and by asserting the equal right of the traveling public to use the track or to cross it, when not materially interfering with the progress of the cars thereupon, is not so harmfully erroneous as to require the setting aside of a verdict finding the street railway company guilty of negligence in colliding with a wagon crossing the track.
Trial—Instructions Substantially Given.—It is not error to refuse a requested instruction which is substantially embodied in the charge of the court.
Opinion — McFarland
McFARLAND, J. While plaintiff was driving a wagon across the railroad track of the defendant he was struck by a car and severely injured, and he brings this action to recover damages for personal injuries occasioned by the collision. The verdict and judgment were for plaintiff, and from the judgment and from an order denying a new trial the defendant appeals. The place where the injury occurred is within the city and county of San Francisco, and the road in question is a street railroad operated by electricity.
Appellant’s main contentions for a reversal are: 1. That respondent was guilty of contributory negligence which should have prevented his recovery; 2. That there was not sufficient evidence to show that there was negligence at the time of the [277]accident on the part of the employees who were running the car which caused the injury; and 3. That the court committed errors prejudicial to appellant in giving and refusing instructions to the jury.
1. We cannot say that as a matter of law the respondent was guilty of contributory negligence—that is, that “all the facts plainly and inevitably point to such negligence, leaving no room for argument or doubt. (Bailey v. Market Street etc. Ry. Co., 110 Cal. 328.) The railroad track was on a public street called the San Jose road, and ran easterly and westerly. At the place of the accident there are some vegetable gardens on the south line of the road. The gardens are fenced, and there is a gate in the fence through which people travel in going from the public street into the garden and in coming from the garden out into the street. The railroad track lies on the southerly side of the street, and is about fifteen feet from the fence and gate. From the gate to the southerly rail of the track there is an up-grade of four or five feet, and a road is made from the gate to the railroad track by a fill which is somewhat narrow. The portion of the street which is on the southerly side of the track is uneven and cannot be traveled over with vehicles; and in order to get from the vegetable gardens to the traveled part of the street the railroad track has to be crossed upon the filled-in narrow road above mentioned. This way from the railroad track into the gardens is not a public road, hut it was frequently traveled by the owners of the gardens and others having business with them. The respondent was in the habit of traveling this way nearly every day. At the time of the accident the respondent drove his wagon up over this filled way onto the railroad track, and while on the track was struck by the car; and it is contended by appellant that he was guilty of contributory negligence because he drove upon the track without due caution. We cannot say, however, that this was so as a matter of law. He testified that when coming out of the gardens he got off his wagon and opened the gate and then looked up the track and could neither hear nor see an approaching car; that in coming toward the track with his wagon he did not see an approaching car until he was nearly or about on the track; that the car was then about fifty yards away, and that he
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