Jamison v. San Jose & Santa Clara R. R.

Morrison, C. J. This action was brought to recover damages sustained by the plaintiff, Mary E. Jamison, while a passenger on defendant’s road; and a trial having been had in the late district court of the Twentieth Judicial District, judgment passed in favor of the plaintiffs for the sum of $300 damages, from which judgment the appeal in this case was taken.

It appears from the evidence that in the month of September, 1876, the city of San Jose was causing Los Gatos Creek to be widened at a point where it is crossed by defendant’s road; that an excavation was made on the east side of the creek, leaving the bridge spanning the creek propped and still standing; that at the time the excavation was twenty feet wide, leaving for that distance a chasm twelve feet deep between the edge of the east bank and the east edge of the bridge, over which there were no means [106]of passage, except upon the railroad track, which was undermined and had been propped, and boards laid along the rails, but over which the cars did not and could iiot pass. As a part of the means used and adopted by the defendant for the transportation of its passengers across the chasm above referred to, defendant laid a line of planks between the rails, extending from end to end across said creek, and filling the space between the rails, but without a railing on either side thereof. There was a log, ioxio inches, lying across the east end of the plankway, which three men could have removed. On the night of September 17, 1876, while the road was in this condition, the plaintiff, Mrs. Jamison, took passage as a passenger on defendant’s car, in the city of San Jose, at a point about a mile east of the bridge. This was at 9 p. m., and the car arrived at the bridge at 9:10 p. m.

Mrs. Jamison testified as follows: “The car went as far as the creek, and then the driver threw open the door and told us to change cars. I started across the plankway, which was twenty feet long. It was so dark I could not see where I was stepping. There were no guards along the plankway, and no lights except in the car I had just vacated, and in the car on the other side of the creek, and one on the other end of the bridge, at the center of the roadway. None of these threw any light on the plank-way, or made it possible to see it. I made one step on the plank-way, and the next I went over and fell to the bottom of the excavation. I fell over because it was so dark. I could not see where I was stepping. I had passed over the plankway several times before in daylight, and knew just exactly how the track was then, and how it was planked. I had crossed it that evening going into town, before it was dark. I was badly hurt.” This statement of plaintiff was corroborated by many witnesses.