McKeever v. Market Street Railroad

Thornton, J.: This is an action to recover damages for the death of - Daniel McKeever, caused by the neglect of the defendant. The action is brought by the heirs of the decedent under section 377 of the Code of Civil Procedure. There were verdict and judgment for plaintiff, and a motion by defendant for a new trial, which was denied. From the judgment and order denying a new trial, this appeal was prosecuted by defendant. It is contended that the evidence is insufficient to justify the verdict. We have examined the evidence, and are of opinion that the point is not tenable. There is a substantial conflict in the testimony on material points, and, therefore, upon the well-settled rule of this and other Courts pronounced in hundreds of cases, we can not disturb the verdict. The testimony consists of a series of circumstances, from which the jury are to find on the issue of negligence. The jury under such circumstances are to make such inferences from the testimony as legitimately and justly follow, on which to base their verdict. They are not only to find the facts, but the inferences from them. The evidence is not of that character which presents a mere question of law. (Fernandes v. Sacramento C. R. Co., 52 Cal. 45; Shafter v. Evans, 53 id. 33; N. E. Glass Co. v. Lowell, 7 Cush. 321; Chidester v. Consol. People’s Ditch Company, ante; Railroad Company v. Stout, 17 Wall. 657, and cases there cited; C. C. P., §§ 1957, 1958, 1960.) The sanie remarks apply to the alleged contributory negligence of the deceased, Daniel McKeever. (See cases just cited, and particularly Fernandes v. Sacramento C. R. Co., 52 Cal. 45.) We find no error in the record. We perceive nothing in the charge of the Court, or in any of the instructions given, in conflict with the rules laid down in Adolph v. Cent. P. N. & E. R. R. Co., 76 N. Y. 530. (See Shea v. P. & B. V. R. R. Co., 44 Cal. 427; R. R. Co. v. Gladmon, 15 Wall. 401.) The charge of the Court and the instructions given were more favorable to the defendant than the law justifies, inasmuch as the statute gives to the jury the power to assess such damages “as under all the circumstances of the case [301] may be just.” (C. C. P., § 377; Matthews v. Warner’s Adm., 29 Gratt. (Va.) 570; Balt. and O. R. Co. v. Noell’s Adm., 32 id. 403-4; Beeson v. Green Mountain G. M. Co., 57 Cal. 20.) The requests of defendant were properly refused. The judgment and order denying a new trial are affirmed. Sharpstein, J., and Morrison, C. J., concurred.