Hearne v. Southern Pacific Railroad

By the Court: The District Court refused the following instruction :' “The deceased was required to exercise proper care, as well as the defendant and its servants, and if, by the exercise of such care, the deceased could have avoided the danger, he was guilty of negligence, and the plaintiff is not entitled to recover.” The foregoing and other like instructions, asked for by the defendant, but refused at the trial, should have been given to the jury. The court seems to have repudiated the rule that if deceased, by his own negligence, amounting to want of ordinary care, contributed to the injury complained of, the plaintiff was not entitled to recover. (Robinson v. W. P. R. R. Co., 48 Cal. 424.) From the circumstances of the case it is perfectly manifest that, if the negligence of the deceased contributed at. all, it contributed directly and proximately to the injury. Needham v. San Jose, etc. (37 Cal. 409), therefore, does not apply. Judgment reversed and cause remanded.