Warren v. Southern California Railway Co.

California Supreme Court Dec 18, 1901 No. L. A. No. 951Published

Before: Garoutte

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Holding. The court held that the trial court did not err in overruling a demurrer to the complaint, denying a motion for nonsuit, or in its instructions to the jury, as the question of whether the plaintiff was contributorily negligent was a matter for the jury to decide based on the specific circumstances of the accident.

Issues

Whether the complaint was fatally ambiguous or uncertain regarding the allegation of negligence.
Whether the trial court erred in denying the defendant's motion for a nonsuit.
Whether the plaintiff was guilty of contributory negligence as a matter of law.
Whether the jury's special findings were in conflict with the general verdict.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The general allegation of negligence above set forth was sufficient to support a cause of action”

“It is not negligence per se in every case for a person to attempt to cross a railroad track in front of a moving train.”

Synopsis

Railroads.—Plaintiff Set Out an Ordinance Limiting the Speed of railway trains, and then alleged that a train running at a great rate of speed by reason of said negligence struck plaintiff. A special demurrer to the complaint as ambiguous in not stating whether the negligence charged was a violation of the ordinance was overruled. Held, that, if error, it was not prejudicial, as the general allegation of negligence supported the cause of action, and would permit evidence of a violation of the ordinance.

Appeal.—The Rule That Error, to Work a Reversal, must be prejudicial, applies to error in overruling demurrers to complaints on ground of ambiguity.

Railroad Crossing—Contributory Negligence.—Plaintiff was in a Wagon, which another was driving. When within two hundred or three hundred feet of the crossing, the driver took the whip in her hand and slowed the horse to a walk, looking to the east, in which direction the view was unobstructed for one thousand feet. Thereafter the view in that direction became obstructed until a point twenty-five feet distant from the track, and at this point they looked, to the west, and then, turning to the east, saw a train approaching, by which time the horse was but a few feet from the track, and the driver attempted to hurry across, but the wagon was struck, and plaintiff injured. Held, that the question of contributory negligence was for the jury.

Railroad Crossing—Contributory Negligence.—The Horse Being Afraid of the ears, and the question whether to attempt to cross or to turn down the embankment being one to be decided on the instant, the attempt to cross, even though a mistake, did not establish con-' tributory negligence.1

Railroad Crossing.—A General Verdict for Plaintiff Being Supported by evidence, a finding on a special issue that the horse was not under control immediately prior to the accident, though without support in the evidence, was not in substantial conflict with the general verdict.2

GAROUTTE, J. Plaintiff Betsey Warren and her daughter, Mary Green, a woman of mature age, were returning to their home in a small market wagon, drawn by one horse, and when crossing the railroad track over C street, in the city of San Bernardino, a collision occurred with an engine attached to a moving train of cars of defendant, and as the result plaintiff was injured and Mary Green was killed. The present action was brought to recover damages for the injury sustained by plaintiff Betsey Warren. Judgment went in her favor, and an appeal is prosecuted from the judgment and order denying a motion for a new trial.

[837]It is asserted that the special demurrer to the complaint should have been sustained. This demurrer was directed to an allegation which stated that the city of San Bernardino had upon a certain day enacted an ordinance whereby it was declared unlawful for a railroad train to travel within the city limits at a greater rate of speed than ten miles an hour. This allegation was followed by another to the effect that the ordinance was in full force and effect at the time of the accident. There was an allegation in the complaint alleging: “That defendant, not regarding its duty, so negligently and carelessly operated and managed one of its trains of cars .... that on said thirteenth day of March, 1899, when said Betsey Warren had reached said crossing and was thereon in said spring wagon, said train of defendant, while moving at a great rate of speed, driven and propelled by steam, and by reason of the said negligence of said defendant, struck the said spring wagon in which said Betsey Warren then and there in the said city of San Bernardino was, and the said Betsey Warren then and there, by reason of the said negligence of defendant, was violently thrown from said spring wagon a great distance into the air, ’ ’ etc. The ambiguity and uncertainty of the pleading is claimed to lie in the fact that it cannot be determined whether or not the plaintiff was charging negligence against defendant based upon a violation of the ordinance. The general allegation of negligence above set forth was sufficient to support a cause of action: House v. Meyer, 100 Cal. 592, 35 Pac. 308; Stephenson v. Southern Pac. Co., 102 Cal. 146, 34 Pac. 618, 36 Pac. 407; Cunningham v. Los Angeles Ry. Co., 115 Cal. 566, 47 Pac. 452. But the ordinance, as set out, appears to be a mere matter of surplusage, for there is no allegation that the defendant was violating it when the accident occurred. Again, under the general allegation of negligence, a violation of a municipal ordinance, such as this one, could be shown without pleading it, for its violation would be negligence: Siemers v. Eisen, 54 Cal. 418. Beyond all this, the doctrine of Alexander v. Central etc. Mill Co., 104 Cal. 536, 38 Pac. 411, may be here invoked. It is there said: “It is not in all cases where error has been committed by trial courts in overruling demurrers to complaints upon the grounds of ambiguity or uncertainty that

Warren v. Southern California Railway Co.

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