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P. Peterson. Appeal by plaintiff from a knew that the ground at the side of the road judgment for defendant, and from an order / was covered with loose stones and boulders denying a new trial. Reversed.

as far down as I could see. * * * I disBien & Jackson and Anderson & Kaye,

covered that fact at the time I drove down

there, and knew it before. * * for appellant. C. L. Claflin, for respondent.

A man might reach the road with an empty stage.

He might do it one time in ten.” While the ALLEN, J. Action for damages on account witness Pritchard stated that “the place outof personal injuries. Findings and judgment side the road where I drove down was not for defendant. Appeal by the plaintiff from

bad looking from above," the entire descripsaid judgment, and from the order denying

tion of the road over which he was compelled a new trial.

to drive in turning out indicates that it was Plaintiff was a passenger for hire upon

an exceedingly bad and dangerous point at defendant's stagecoach, such stagecoach hav which to undertake to leave the road. It is ing capacity for nine, but was carrying only

admitted that no notice was given to the passix passengers. The route being traversed

sengers of the dangerous character of this was rough and mountainous. The stage was

particular turnout. It further appears from driven by a thoroughly competent and skilled

the testimony that after driving past the man, and all of the appointments were in

team, in an effort to turn back into the road, perfect condition. The stage thus driven

the right fore wheel struck one of these was met by a 10-horse team upon this moun boulders of which witness Pritchard speaks tain road, and the driver of the stage under

and upset the stage; that after the stage took to pass the team by turning to the right.

started to turn over plaintiff leaped thereThe evidence of Pritchard, the driver, is:

from, and was caught and injured. "The place outside the road where I drove

The court finds that there was no neglidown was not bad looking from above. As

gence upon the part of the defendant, alfar as I could see, it was a rocky ridge that

though it makes no specific finding as to the went down and narrowed up. At the point

danger to be apprehended at the point where where we turned in it hadn't been very bad

the driver undertook to turn out of the road, only for the big loose boulders. Looking on

and pass the cement team. The court does down it got narrower and the hills broke off

find, however, and there is testimony in its steep to the right, and the load was very

support, that the place where he undertook abrupt on the left-hand side also until you

to turn back into the road after having got further down. The embankment was

passed the cement team was apparently a formed by throwing loose rocks out of the

safe place. road. The rut where I turned in was about

It is insisted by the appellant that there eight or ten inches deep and the bank had a

is no evidence to support the finding that gradual slope toward it a distance of eight

no negligence was attributable to the defendor ten feet. The slope was not steep, but

ant. With this we are inclined to agree. The was gradual and easy.

*
* The ridge

care which defendant, as a common carrier, becomes narrower as you go down until it

owed to plaintiff was the utmost care. Treadpinches out."

well v. Whittier, 80 Cal. 588, 22 Pac. 266, The defendant, called in his own behalf,

5 L. R. A. 498, 13 Am. St. Rep. 175. The testified, and was asked whether it was pos

passenger was injured by an instrumentality sible, by the exercise of care on the driver's

used by defendant in the prosecution of his part, to have driven the coach into the road

business, and the presumption is that it ocat that point without tipping over; his an

curred by the negligence of the coachman. swer was: “I don't know of any way that he

We find nothing in the evidence tending to could prevent it.” When asked if, by the

rebut this presumption. "Moreover, where exercise of the highest degree of care, by

the driver of a coach approaches a place of watching everything in the road, the driver

particular danger to passengers, he is bound could "have driven that coach in there with

to warn them of the nature of the danger, out turning over," defendant answered:

to the end that they may choose whether "Well, I don't think he could." To the fur

they will run the risk of it or not." Thompther question, do you think any man could son's Carrier of Passengers, p. 240. We drive that coach in there where he turned

think that the general tenor of the authorities off from the road without turning it over?

cited by the appellant sustains the position defendant answered: "I don't think so."

that it was negligence upon the part of the Again, he says: “Of course, I would try and driver, in view of the rough character of the be safe, but I might be turned over.

turn out, which he must of necessity traverse I don't think it could be done with safety be in order to pass this wagon, in not giving cause I had as safe a man as ever drove on the passengers notice of the danger apparent, the road." And to the further question: that an opportunity might be offered them “Then it was a matter of impossibility to to alight and avoid the same. His omission have driven that coach around that cement in this regard was negligence. No contribuwagon and gotten in again without turning tory negligence is shown. Assuming as we over; that is a fact, is it not?Answer: "It do that the driver drove his coach into a seems so." The driver further testified: “I dangerous place and exposed the passengers

I say

to peril, the act of the plaintiff in attempt Bernardino. At the conclusion of plaintiff's ing to jump from the coach was not con evidence, defendant's motion for a nonsuit tributory negligence. It is said by our Su was granted. The plaintiff appeals from the preme Court in Schneider v. Market Street judgment which followed. Ry. Co., 134 Cal. 482, 66 Pac. 734, that "even The only question presented arises ujion if, in bewilderment, he runs directly into the the order granting the nonsuit. It is convery danger which he fears, he is not in fault. tended by appellant that, while the negliThe confusion of mind caused by such negli gence of the deceased must be admitted to gence is part of the injury inflicted by the have contributed to his death, yet the defendnegligent person.” There is nothing in the ant's engineer had notice of the negligence evidence to indicate that the action of plain of the deceased in time to have avoided tiff in jumping from the stage contributed the killing if he had used proper care and in any degree to its overturning. for the stopped the train. The facts of the case are uncontradicted testimony is that the stage in many respects similar to the facts in the was overturning before he jumped.

case of Green v. Los Angeles Terminal Ry. In our opinion, the judgment and order Co., 143 Cal. 31, 76 l'ac. 719, 101 Am. St. should be reversed, and cause remanded for

Rep. 68, and may be briefly stated as folfurther proceedings; and it is so ordered. lows: The deceased was approaching the

defendant's track from the west on the side We concur: GRAY, P. J.; SMITH, J. walk which traversed the south side of the

street. The defendant's locomotive, with a

train of cars attached, was approaching from (4 Cal. App. 1)

the northwest, the same point to which the ROWE v. SOUTHERN CALIFORNIA

deceased was going, at an angle of about 45 RY. CO.

degrees with the course deceased was travel(Court of Appeal, Second District, California. ing. The speed of the train was five or six June 23, 1906.)

miles an hour, and, as it was approaching 1. RAILROADS-Crossing ACCIDENT-INJURIES the deceased partially from behind and to TO PEDESTRIANS – WILLFUL INJURY — CON

the left, it could not be seen readily by him TRIBUTORY NEGLIGENCE.

Intestate approached a railroad crossing unless he turned his head. This was in the without paying any attention to his surround evening, nearly dark. An oil lamp was burnings or to a train approaching at a speed of ing in the headlight of the locomotive. The from five to six miles an hour. The engineer saw intestate before he came on the track and

engineer, leaning out the window from the blew three or four quick blasts. lle then called right-hand side of his cab, saw deceased passto deceased to "look out," and seeing that he

ing along the south sidewalk, while the enpaid no attention immediately turned on the

gineer was still north of the street. He whistle again and at the same time set the air brakes, but it was then impossible to prevent observed that deceased was walking slowly the collision, and intestate unheedingly stepped and without any attention to his surroundimmediately before, and into, the cowcatcher, receiving injuries from which he subsequently

ings, and, for the purpose of attracting his died. After the brakes were set, the locomo

attention, he blew three or four quick blasts tive and train stopped in about 30 feet. Held, upon his locomotive whistle. He then called that the engineer was not guilty of gross or to the deceased in a loud voice, "Look out wanton negligence in failing to stop the train in time to avoid the injury.

there," and seeing that the deceased still [Ed. Note.-For cases in point. see vol. 41,

paid no attention he immediately turned on Cent. Dig. Railroads, 88 1015, 1016.]

the whistle again, at the same time setting 2. SAME-PROXIMATE CAUSE.

the air brakes; but it was then impossible Intestate's contributory negligence, and not for the engineer to prevent a collision. The the negligence of the engineer in not bringing deceased unheedingly stepped immediately the train to a standstill when he first saw de

before or into the cowcatcher. Both big ceased, was the proximate cause of the injury. [Ed. Note.-For cases in point, see vol. 41,

legs were broken between the ankles and Cent. Dig. Railroads, $ 1028.]

knees, and he was thrown back from the

track upon the same side from which he apAppeal from Superior Court, San Bernar

proached. A day or two later he died. After dino County; Benjamin F. Bledsoe, Judge.

the brakes were set, the locomotive and train Action by Henrietta J. Rowe, as administratrix of the estate of Edwin Rowe, deceas

were brought to a stop in about 30 feet.

The engine bell was kept ringing from the ed, against the Southern California Railway Company. From a judgment for defendant,

time the deceased was first seen by the en

gineer. The deceased held the office of conplai. tiff appeals. Affirmed.

stable in the township where he was killed. Henry M. Willis, for appellant. T. J. Nor

He was habitually given to spells of abton and E. E. Millikin, for respondent.

straction and absent-mindedness, and was

partially deaf in the left ear (the one nearGRAY, P. J. This action is brought by est the approaching locomotive). These physplaintiff to recover damages from defendant ical defects were not known by the engineer. for the alleged negligent killing of plaintiff's The contributory negligence of deceased husband by one of defendant's passenger is conceded by appellant, and the complaint is trains at a street crossing in the city of San framed and the trial proceeded on the theory

that the recovery must be had, if at all, for the gross and wanton negligence of defendant's engineer. This gross and wanton negligence is alleged to consist in his not having stopped the train in time to avoid striking the deceased. We cannot agree with this. The engineer evinced no wanton desire to injure deceased, nor is there any evidence of a reckless disregard on his part of the safety of the deceased. The very contrary of this clearly appears from the undisputed evidence. He promptly resorted to, and industriously persisted in, all those means which are usually effective to call an absent-minded man to his senses, and this is all that the rule in such cases requires. When he sees that a person is walking into danger, he must use ordinary care to warn him of such danger and prevent the injury. The engineer had no notice that deceased was going to disregard all his warnings until he had given the warnings, and it was then too late to make the stopping of the train effective to avoid the killing. This was not the engineer's fault, but the fault of deceased arising from 18s physical defects which the engineer knew nothing about. The doctrine which makes a personal injury the fault of him who has the last clear opportunity to prevent it has coupled with it and in it the element of notice. And "under this rule a defendant is not liable because le ought to liave known." IIerbert v. S. P. Co., 121 Cal. 227, 53 Pac. 651. Here the engineer had no notice and no reasonable ground to think that it was necessary to stop his train to aroid running over deceased, until it was too late to do so. After he discovered that he must stop his train or kill a man he had no clear opportunity to do it. l'p to this time it would have been something beyond ordinary care for him to stop his train; it would have been extraordinary care. Trains are not ordinarily stopped, or even held stationary, to allow people on foot to pass in front of them. Another element of the rule with which we are here concerned is that circumstances must be such, and must appear to the party to be charged to be such, “that the deceased cannot, and the defendant can, prevent the injury." “This principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.” Holmes v. South Pac. C. Ry. Co., 97 Cal. 169, 31 Pac. 831.

If we were to concede that the engineer was negligent in not bringing the train to a standstill when he first saw the decedent, still the plaintiff could not recover because of the fact that decedent was in no danger so long as he did not step upon the track. He brought himself into a position of immediate danger by so stepping upon the track, and this was the proximate and immediate (ause of his injury, and the previous failure

to stop the train had only a remote connection therewith. To be sure, if the train had been stopped in time, the injury would not have happened. This is so, however, not because the engineer would have thus refrained from injuring the deceased, but because he would have thus prevented the deceased from injuring himself by walking into the pilot of the moving locomotive. It is not a reasonable deduction from the conduct of the engineer to say that he did know, or should have known, from the conduct of the deceased, immediately on the sounding of the whistle the first time, that he was going to thereafter walk upon the track heedless of all further warning. It is fair, however, to say that the engineer never for a moment thought that deceased was going finally to ignore the several warnings given him during that short few seconds of time until it was too late to prevent striking him, and the instant that he realized that those warnings were ineffective he did his best to stop the train. This is all the law requires. Green v. Los Angeles, etc., Ry. Co.143 Cal. 31, 76 Pac. 719, 101 Am. St. Rep. 68. Even under the dissenting opinion of the Chief Justice in the Green Case, and the principles therein laid down, the plaintiff herein shoulci not recover, for it is plain that the dissent of the Chief Justice was largely influenced by the excessive speed of the train and the absence of all warning of its approach.

The appellant cites many cases from this and other states. Some of the latter support her position, but we think them in principle at variance with the decisions of our own Supreme Court. In this state no case has gone to the extent of sustaining a recovery where, as here, the injury was the immediate, if not the sole, result of the negligence of the party injured. The case of Esrey v. S. P. Co., 103 Cal. 544, 37 Pac. 500, is a fair illustration of the California cases on this question; but, in that case the injured party was not only in a place of danger to the knowledge of the brakeman, but unable to extricate herself at the time the signal was given to start the train. The strongest case cited by appellant is Lee v. Market St. Ry. Co., 135 Cal. 293, 67 Pac. 765. This, however, was a street car case, and, in the nature of things, there is a difference between that and a steam railway case. A street car is more readily brought to a standstill than a heavy train; besides, a street car must necessarily be frequently operated among great masses of people. The Supreme Court has recognized this distinction. Clark v. Bennett, 123 Cal. 278, 55 Pac. 908. Moreover, in the Lee Case it was shown that the car was going at a high and "unusual rate of speed and

nding no gong nor alarm bell"; and that the motorman's attention was called by a passenger to the dangerous position of plaintiff. For these reasons, the case is not analogous to the one before us.

Unless we are to bold that contributory

negligence is never a question of law, but always a question of fact for the jury, we must hold in this case, as a matter of law, that the injury was shown to be the direct and proximate result of the negligence of the deceased, and that the trial court was warranted in granting the nonsuit

The judgment is affirmed.

I concur: ALLEN, J.

85, the case was one in which, after the danger became imminent, there was a physical impossibility for the plaintiff to escape, but the language of the court seems to accord with the more liberal doctrine. The preponderance of authority would, therefore, seem to have been in favor of the more liberal application of the doctrine, prior to the decision in Green v. Los Angeles Terminal Ry. Co., but that case seems to be in conflict with this view, and upon its authority I feel constrained to concur in the conclusion of my associates.

I do not, however, concur altogether in the view that the doctrine of last opportunity can apply only where there is "gross and wanton negligence" on the part of the engineer, or "a reckless disregard on his part" of the safety of the deceased. This proposition is true only in a qualified sense. But the term "ordinary care” as applied to the engineer on a train in an emergency, means the ordinary care of competent men in that position, and cannot be regarded as anything less than great care (Henderson v. Los Angeles Traction Co. (Cal. Sup.) 89 Pac. 976); and, as has been expressed in several cases, the failure to exercise such care by a defendant may be regarded as amounting “to a degree of reckless conduct that may well be termed willful and wanton” (Esrey v. Southern Pacific Co., 103 Cal. 544, 545, 37 Pac. 500; Everett v. Los Angeles Ry. Co., 115 Cal. 114, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350).

SMITH, J. I concur in the judgment of affirmance. It appears clearly from the evidence that if the defendant's engineer, at the time he hallooed at the plaintiff, had put on the brakes instead of hallooing, the accident would not have occurred. The evidence was also of such a character as would have justified the jury in finding that, at this point of time, the plaintiff was unaware of the approach of the train, and that the engineer knew of this fact, and that plaintiff was about to step in front of the engine. On this appeal, therefore, which is from a judgment of nonsuit, these facts must be assumed as established. The sole question in the case, then, is whether the engineer, being aware of the inevitability of the accident unless he stopped the train, was guilty of such negligence as to bring the case within the doctrine that "the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible. Esrey V. Southern Pacific Co., 103 Cal. 545, 37 Pac. 500.

The doctrine in question, as above and elsewhere expressed, is susceptible of two interpretations: The one is that the doctrine will apply only to cases where the negligence of the injured party is wholly antecedent to the negligence of the party causing the accident; and hence that, where the negligence of the injured party is continued up to the time of the accident, it will not apply if there be a physical possibility for him to escape. The other is that it will apply even to cases where the negligence of the injured party continues up to the time of the accident, if it be known to the other party that he is unaware of his danger and that the accident will inevitably occur. The former doctrine is asserted in the following, and some other

Holmes v. South Pac. C. Ry. Co., 97 Cal. 161, 31 Pac. 834; Everett v. Los Angeles Ry. Co., 115 Cal. 119, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350; Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31, 76 Pac. 719, 101 Am. St. Rep. 68. The latter is expressed in the opinion of the dissenting judges in Everett v. Los Angeles Ry. Co., 115 Cal. 111, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350, and in Herbert v. Southern Pacific Co., 121 Cal. 232, 53 Pac. 651, and Lee v. Market St. Ry. Co., 135 Cal. 293, 67 Pac. 765. In Esrey v. Southern Pacific Co., supra, as in Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 Pac. 15, 63 L R. A. 238, 98 Am. St. Rep.

(4 Cal. A. 12) BRETT V. BERGER. (Court of Appeal, Third District. California

June 23, 1906.) 1. LANDLORD AND TENANT-DUTY TO REPAIR.

At common law the burden of makicg repairs was on the tenant; the landlord being under no obligations so to do, unless by express agreement to that effect.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, $ 536.] 2. SAME — CONTRACT TO REPAIR CONSTRUCTION.

Where a lease provided that, in the event of any repairs being necessary, to the fences or buildings on the premises, the landlord should furnish all material necessary thereto, together with one man's labor, at his own cost and expense, and that the tenant should furnish all the additional labor necessary thereto at his own cost and expense, the landlord was only required to furnish materials for repairs and one man's labor when called on by the tenant to do so.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, $ 548.) 3. DAMAGES-CONTRACT–BREACH.

Where a landlord agreed to furnish materials and one man's labor necessary for subsequent repairs on fences and buildings, the lessee could not stand by and see his crops destroyed by his own stock after the landlord had refused to furnish material and labor on demand and seek compensation for the ensuing damage, but was bound to make the repairs and sue the landlord for the outlay in money.

Ed. Note.-For cases in point, gee vol. 32, Cent. Dig. Landlord and Tenant, $ 649.)

Appeal from Superior Court, Lake County; M. S. Sayre, Judge.

Action by T. I. Brett against L. P. Berger. From a judgment for defendant, plaintiff appeals. Affirmed.

Bond & Haycock, for appellant. H. V. Kreling and Crawford & Crawford, for respondent.

CHIPMAN, P. J. Defendant had judgment on motion for nonsuit at the close of plaintiff's evidence. Plaintiff appeals from the judgment on bill of exceptions.

Plaintiff and defendant entered into a written lease whereby defendant let to plaintiff the premises called the "Mt. Carlo Ranche" for the term of five years commencing October 15, 1901, reserving to defendant the use of certain land and buildings thereon. The lease was for a cash rental of $350, payable in equal semiannual installments. Among other provisions of the lease was the following: "It is also understood and agreed between the aforesaid parties that in the event of any repairs being necessary to the fences or buildings on said premises and herein leased, that the party of the first part shall furnish all material necessary thereto, together with one man at his own cost and expense, and that said party of the second part shall furnish all the labor necessary thereto at his own cost and expense.” The action is for alleged damage to plaintiff's crops during three different years of the term; namely, to his growing crops during the summer of 1902 by reason of plaintiff's hogs breaking through the fences by which they were inclosed; by certain hay stored in the barns on the premises during the winter of 1902-1903 being injured by rain beating through the alleged leaky roofs; by similar damage from plaintiff's hogs destroying his crops in 1904; by loss of time in pursuing his cattle and hogs because of their escaping from their inclosures through the dilapidated fences. Damages are claimed solely "by reason of defendant's breach of said covenant (above set forth) committed by the defendant in not furnishing material necessary to repair said barn and fences and in not furnishing a man therefor, as aforesaid.” It is alleged in the complaint and was proved that plaintiff frequently informed defendant of the condition of the fences and roof of the barn and called upon him to furnish the material required for necessary repairs and the labor of one man to make needed repairs, but defendant neglected and refused to do so. There is no allegation and no proof that plaintiff demanded of defendant that he make the repairs or do more than to furnish the material and the labor of one man therefor. Plaintiff testified that he "did all he could to repair said fences, and used such material as he could find on the place in repairing them, and also used his own material therefor, but that he did not have suñicient material to put them in condi

tion to protect his said crops and control his stock"; whether plaintiff made any effort to obtain material by purchase or otherwise with which to make the repairs or that he was financially unable to provide the necessary money, does not appear. It did appear, however, that there were more than six miles of fencing on the place which latter was divided into several fields and that much of the fence needed "extensive repairs to make it sufficient to control his stock and to protect his said crops, and that the necessary repairs would have cost a large sum of money." It also appeared that defendant had a 40-acre vineyard, reserved in the lease, and that defendant kept the fence around it in repair; plaintiff also testified that “he inspected the fences on said premises at the time he entered into the lease, and that said fences and other improvements were in a poor state of repair at that time, as poor, in fact, as they have been at any time since.”

The motion for nonsuit was on the grounds: (1) That the complaint fails to state a cause of action. (2) That under the covenant sued upon, defendant is under no obligation to make any repairs and that the measure of damages, if any, is the reasonable value of the services of a man, and the cost of the material necessary for making repairs, and that no such damage has been alleged or proved; that under the terms of the lease, or the said covenant, plaintiff is not entitled to recover anything for the value of the crops destroyed or by reason of defendant's failure to make repairs to any improvements on the premises. Appellant concedes that the complaint does not state facts sufficient to constitute a cause of action if it be true, as held by the lower court, that plaintiff's only remedy, on the breach of the alleged covenant, was to procure the material and labor necessary to make the needed repairs, make them himself, and to recover the cost of the material and labor of one man; for, as is admitted, the complaint nowhere alleges and the proof fails to show that plaintiff made any repairs, or furnished any material or labor for making them. We are thus brought to consider what seems to us the sole inquiry in the case namely: (1) Was defendant under any obligation to do more than furnish the material and the labor of one man; and (2) failing to do this was he liable for the damage to the crops as the pleadings stand?

Appellant's contention is: (1) That the covenant in question "is a covenant on the part of the landlord to repair"; and hence the tenant may make the repairs and recover the cost from the landlord; or, he may leave the premises unrepaired, and recover any damage he may have sustained from the landlord's fault therein. Respondent's contention is: That the lessor is not compelled to make repairs unless there is some express agreement thereto, and that in the present case the obligation of the lessor, as to repairs, is limited solely to the furnishing of the neces

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