Robinson v. Western Pacific Railroad

By the Court, McKinstry, J.: The line of the defendant’s road ran through the City of Stockton on Sacramento street—crossing Lafayette street at a right angle. A short distance from the junction of these streets stood p, tank, from which a locomotive-tender had just been supplied with water; the train extending from the tank on Sacramento street to Lafayette, and into the crossing of the two streets. The plaintiff, Hannah, was proceeding along Lafayette street and across Sacramento. • She had reached the track of the railroad, at a distance of from five to ten feet in the rear of the hindmost car, when the train was backed toward her. Apparently confused by a sense of her imminent danger, the plaintiff ran on a tressel-work, which commenced one or two yards from the place she occupied when the cars began to move; and, to avoid the approaching train, stepped out upon a projecting timber at the side of the track. Here she was struck by one of the cars. ‘ Her «arm was thrown beneath a wheel, by which it was so lacerated and crushed that its amputation was necessary. The plaintiff fell to the ground beneath the tresselwork. The freight or box-cars intercepted the view of the engineer and stoker, so that, from their places on the locomotive, they could not see the middle of the "track for a distance of two hundred feet immediately behind the cars; and no brakeman or look-out was stationed where he could see the plaintiff or any object on the track for a considerable distance beyond her. There is a substantial conflict in the testimony as to whether the bell on the engine was or was not rung before the cars began to move, and there was some evidence tending to show that there was a wood-pile on the further side of the rails, nearly opposite the point at which the plaintiff approached the track. It is clear that the employés of the defendant were guilty of gross negligence. Defendant claims that a new trial should be granted on the ground that the negligence of the plaintiff contributed, as a proximate cause, to the injury by her sustained. — 421 — About the general rule—that a plaintiff cannot recover for the negligence of the defendant, if his own want of care or negligence has in any degree contributed to the result complained.of—there can be no dispute. (Needham v. San Francisco and San Jose Railroad Company, 37 Cal. p. 419; Gay v. Winter, 34 Cal. p. 153.) But we do not think the circumstances indicate any want of ordinary care on the part of the plaintiff. We attach, little consequence to her conduct after the train began to move. Startled and alarmed, as she doubtless was, by the imminent peril of her position, it would be asking more than should be required of an ordinarily prudent and reasonable person to demand that she should exercise the soundest discretion in her efforts to escape. Nor should the fact that the plaintiff was on the track—disconnected from the other circumstances—be considered as proving negligence. A person will ordinarily escape all danger of being run over by a railroad car by not going on the line of the road; but to say that a plaintiff’s being on the track shall preclude a recovery of damage, is to assert that, in such cases, a plaintiff can never recover. The plaintiff here was exercising an undoubted right, and she was authorized to assume that all other persons using the street would act with due care. It cannot be imputed as negligence that she did not anticipate culpable negligence on the part of the defendant. (Shearman and Redfield, Sec. 31.) She could properly act on the presumption that the employes of the defendant would use the degree of care which persons of ordinary prudence are accustomed to employ under the same or similar circumstances; due regard being had for the rights of others. (Cleveland, etc., Railroad Company v. Terry, 8 O. R. 570.) Whenever an enterprise—like that in which the defendant was engaged—necessarily involves serious risk to life or limb, a due regard to the rights and safety of others requires that great care shall be taken to prevent accidents, and other persons may calculate upon every reasonable precaution on the part of those who have assumed the responsibility of controlling a power in itself inexorable and perhaps destructive. . The train of defendant occupied, trans — 422 — versely, the whole of Lafayette street with the exception of the limited space between the last car and the trestle-work. If before or after the plaintiff had commenced to cross she had been notified that the train was about to move, and a proper pause had been made, she would have escaped all injury. But she was not bound to wait indefinitely because the train was there, or to assume that it might move suddenly backward and without notice. If the bell was rung, this does not of itself establish proper care by the defendant, or a want of' such care in the plaintiff. She may not have heard the bell at the other end of the train, or, hearing it, may not have accepted its sound as a signal that the cars were about to move in a direction the reverse of that ordinarily pursued. If there are persons in front of a locomotive about to start, the bell warns them to leave the track; but if they do not leave it, the engineer is not justified in driving his engine over them. The bell is intended to give notice to all, but it is the duty of the engineer to see that all have acted on the notice. Shall he run his train backward and be excused because he did not, or could not, see those in his way? Can a railroad company be relieved of any portion of its responsibility by adopting a mode of running its trains less cautious than the usual mode? A man should have been stationed where he could see the rails in the direction in which the train was to move, upon whose signal, that the line was clear, the engineer should have acted. ' The omission to provide such look-out when a train was moved backward, and across a street of a populous city, is a circumstance of much weight in determining not only the fault of the defendant, but the question of the plaintiff’s negligence. It is no defense to an action of this kind that the plaintiff by his own act has contributed to his injury; it must appear that by his own fault he has so contributed. And the law regards the plaintiff as innocent, unless he has been guilty of what has been called (somewhat awkwardly) “ordinary negligence;” that is, unless the evidence shows a want of ordinary care and prudence on his part. His failure to take great care is no defense. (Shearman and Redfield, Sec. 29.) The for — 423 — inula, is, not that any degree of negligence on the part of the plaintiff which directly concurs in producing the injury (however slight) will constitute a defense; but if the negligence of the plaintiff, which amounts to the absence of ordinary care, shall contribute, in any degree, proximately to the injury, the plaintiff shall not recover. A very timid or cautious person would not perhaps have gone on the track as the plaintiff did, and—as the absence of great care is slight negligence—it may be claimed that, to that extent, the plaintiff was negligent. Tet if the person who should have been where he could see her had set the train in motion, the defendant would have been liable in damages. And this for two reason: First, her negligence did not amount to the absence of ordinary care; and second, the gross negligence of defendant’s servant in putting the cars in motion, with knowledge of her exposed position, would have been the sole proximate cause of the injury. As the case stands there is no proof that the agents of defendant were aware of the plaintiff’s presence on the track—of that principally consists their culpable negligence since they should have been aware of it—but, unless we can declare that a foot-passenger was debarred the use of that portion of the street while a train of cars remained stationary near by, we must conclude that the plaintiff was justified in believing that she could safely cross the track when and where she made the attempt. A new trial should not be granted therefore on the ground that the negligence of the plaintiff contributed to the hurt she sustained. But not only do we think that the jury were justified in finding that a want of ordinary care on the part of plaintiff did not proximately concur, with the negligence of defendant, in producing the accident", but we are satisfied that the jury .could properly have come to no other conclusion on the subject. So convincing are the proofs that if the jury had found to the contrary it would have been the duty of the District Court to set aside the verdict as not supported by the evidence. Where there is no substantial conflict, and the finding is contrary to the evidence, a new trial should be granted. (Lyle v. Rollins, 25 Cal 437.) — 424 — At the request of the plaintiff, the Court charged the jury: “ In this case, if you find from the evidence that the plaintiff was guilty of negligence in going on the track of defendant, still the railroad company was bound on their part to the exercise of reasonable care and diligence in the use o£ their road, and the management of the engine and train; and if you find from the evidence that such reasonable care and diligence was not exercised by said company, their agents or servants, in the management of the engine and train at'the time of the alleged accident, and by reason thereof the plaintiff was injured and lost her arm, as stated and charged in the complaint, then she is entitled to recover such damages as you find from the evidence she has sustained, not exceeding $20,000.” The plaintiffs were not warranted in asking this instruction. It was calculated by its terms to impress the jury with the idea, that even if the neglect of ordinary care, by plaintiff, concurred as a proximate cause, in precipitating the catastrophe, still the defendant was responsible, if its agents were at fault. Needham v. San Francisco and San Jose Railroad Company does not sustain the proposition broadly stated in the .instruction; that was a case in which the plaintiff’s negligence was remote, not proximate. But the charge could not have prejudiced the defendant. If the Court had instructed the jury that the plaintiff was not at fault, or was entitled to a verdict provided only the defendant was guilty of negligence, ete., this would not have been ground for setting aside the verdict, because the jury must, from the evidence, have found the fact assumed by the Court; that is, that the plaintiff was shown not to have been guilty of negligence. That question has been settled by this Court. (Terry v. Sickles, 13 Cal. 427; Pico v. Stevens, 18 Cal. 376.) In the present case the jury were told that they could disregard the legal consequences of a fact (plaintiff’s negligence), if they found the fact to exist. This was error; but as the jury could only have found that the fact did not exist, the erroneous portions of the charge did not .injure the defendant. — 425 — The erroneous instruction fell with the fact on the hypothetical existence of which it rested, and the defendant can no more complain of the instruction than if the Court had directly charged that the fact did not exist; the evidence being so conclusive of its non-existence as that a new trial would be granted if the jury should find to the contrary. If we are correct in what we have said, in respect to the effect of the evidence, the Court below committed no error • in refusing the third, fourth and fifteenth instructions requested by the defendant. The fourteenth was properly refused, because it does not declare the law. The Court gave to the jury a number of written instructions prepared by the respective counsel, and then charged them orally. The transcript reads: “Counsel on both sides excepted to the charges given and refused.” With respect to written instructions prepared by counsel the Court can protect' itself from the consequences of a hasty perusal and adoption of them, by rule providing that they shall be submitted to counsel on the other side, and be presented for approval and settled before the argument begins. An exception to each of such instructions is sufficient in form. But it frequently happens that the instructions offered do not cover all the issues in the case, or that, as the argument proceeds, new points are made as to which, either because important or calculated to mislead, the Court deems it its duty to charge the jury. It is the common practice, therefore, (after the written charges are read,) for the Court to proceed of its own motion, with an oral charge. Exceptions to the oral charge ought to point out the specific portions excepted to, and be made at the time, in order that the Judge may have an opportunity, before the jury retires, to correct any error he may have inadvertently fallen into in the hurry and perplexities of the trial. (Hicks v. Coleman, 25 Cal. 122.) The party desiring to except could not complain of surprise while the Practice Act of 1851 was in operation, because, by the one hundred and fifty-sixth section of that Act, he could have the points of law contained in the charge reduced to writing before the jury retired. — 426 — In the case before us, if the exception applies to the oral charge at all, it applies to it generally, and does not point to the specific portion objected to; nor did the defendant ■call the attention of the Court to its error, if any, in respect to the matter of damages, by presenting any specific instruction with respect to the same subject. In view of all the evidence, we cannot say that the damages found by the jury are excessive. Judgment and order denying the motion for new trial affirmed. The defendant filed a petition for a rehearing, and the .following opinion was delivered, denying the application.