Carraher v. San Francisco Bridge Co.

Foote, C. This action was to recover damages for injuries alleged to have been suffered by Carraher, the plaintiff, through the negligence and carelessness of the defendant in running a train of cars engaged in hauling sand and rock to fill in a section of the seawall, being then in process of construction on a portion of the water-front of the city of San Francisco. The plaintiff had a verdict of the jury trying the cause awarding him the sum of one thousand dollars. From the judgment thereupon rendered and an order denying a new trial the defendant appeals.

The appellant contends that the verdict is not warranted by the evidence, and that certain of the instructions given by the court to the jury at the instance of the - plaintiff are misleading and erroneous. Counsel argue that the evidence shows without conflict that the plaintiff caused his own injury" by his inattention to the -horse which he was driving, his mismanagement of the animal, and his carelessness in approaching the crossing of the railroad, near to which the injury was inflicted. There is a sharp conflict between that to which the plaintiff swore and some of the evidence given for the defendant, but the jury found for the plaintiff, and we see no reason to reverse their verdict on the evidence. The plaintiff declared that he had driven his horse and cart to the point where he dumped the load of sand and rock which he was hauling, and was on his return to the place from which another load was to be taken; that when he approached very near to the crossing of the railroad of the defendant over the seawall (which lay at the foot of Vallejo Street, and across it along the water-front of the city of San Francisco, if the street were prolonged to and beyond the crossing), the defendant’s train of cars coming suddenly [100]along very close to the head of the plaintiff’s horse, frightened the animal, which in his struggles upset the cart in which the plaintiff was riding, threw it and him down the bank of the seawall, and broke his wrists, etc. His further statement is, that there was no flag-man at that point, or any other means of warning to him of the coming of the train; that he heard no bell or whistle, and that he was prevented from seeing the approaching train by reason of the obstruction to his view caused by a coal-house, which stood near the track, and was used by the defendant for holding its supplies of coal for its engines.

The defendant contends that there was no proof that the place where the plaintiff was injured was the same as that alleged in the complaint. It is very evident, from an inspection of the whole record, that the allegations of the complaint on the point are substantially sustained by the plaintiff’s testimony. The seawall which the railroad crossed was extended over a space of ground which necessarily lay at the foot of Vallejo Street, if the same had been extended to the said seawall and water-front, was in a direct line with such extension if it had existed, and was only a very short distance from that part of the street used as a public thoroughfare. The crossing was used as a public way for numerous teams hauling material to construct the seawall, and we cannot see how the proof varied in any material degree from the allegations of the pleading.