Fogel v. San Francisco & San Mateo Railway Co.

BELCHER, C. The plaintiff brought this action to recover damages for injuries to his person alleged to have been caused by the negligence of defendant’s servants and employees, in consequence of which he was thrown from one of its moving cars. The answer denied any liability on the part of defendant, and alleged that the injuries sustained by plaintiff “were occasioned by the negligence of said plaintiff in jumping from said car while the same was in motion, and that the said negligence of said plaintiff proximately contributed to the injuries alleged to have been received by him.” The case was tried before a jury, and by the verdict plaintiff was awarded damages in the sum of $1,000, for which judgment was entered. From this judgment, and an order denying its motion for a new trial, defendant appeals.

It was proved on behalf of the plaintiff that the car on which he was riding was going at a greater speed than usual, and that on coming to a switch the front wheels passed on to the switch and the hind wheels remained on the main track; that the car was thereupon brought to a sudden stop, and the plaintiff was thrown off, and, when picked up, was found to be badly bruised and unconscious. John W. Tracy was a witness for plaintiff, and was asked: “Was anybody else thrown off of the car?” He answered: “Yes, sir; a lady.” J. J. Kerr was a witness for defendant, and on cross-examination was asked if he saw the plaintiff lying on the ground, and answered that he did. He was then asked: “Did you see anybody else lying on the ground besides this man?” “A. Yes, sir; I saw a lady.” “Q. Was she injured?” “A. Not very much. We picked her up.” Similar questions were propounded on cross-examination to defendant’s witness Conrad Trieber. All of these questions were objected to by defendant upon the ground that they were irrelevant, immaterial and incompetent, and the objections were overruled. It is claimed that the questions objected to were not relevant to the issues presented- by the pleadings, and that the testimony as to the injury of the lady tended to prejudice the minds of the [196]jury against the defendant. The testimony was evidently offered to meet and overcome the defendant’s theory that plaintiff’s injuries were caused by his own negligence in jumping from the car when it was in motion, and for that purpose it was clearly competent and admissible.

William Craven was a witness for defendant, and testified that he was an oiler on the electric road of the defendant, his business being to oil the switches and curves; that it was his duty to examine the switches, and see that they were in good order, and that on the day the accident occurred he examined the switch where plaintiff was hurt at about a quarter past 6 in the morning and again about 11 o’clock; and that on both of these occasions it was in good order. He was then asked the following questions: “Mr. Craven, was anything omitted that could have been done, that a man of foresight could have advised, or were you as careful as a man could have been to have avoided an accident, on this day?” “Well, now, in your opinion as a railroad man, used to working on railroads, was everything done that could have been done in the matter to obviate or prevent this accident?” Both questions were objected to by plaintiff upon the ground that they were immaterial, irrelevant and incompetent, and the objections were sustained. The rulings of the court were correct; both questions call for the opinion of the witness upon a matter of fact, which was the principal question at issue, and which it was the sole province of the jury to decide.