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(151 Cal. 534) VALENTE et al. v. SIERRA RY. CO. OF CALIFORNIA. (Sac. 1,474.)

(Supreme Court of California. July 22, 1907.) 1. CARRIERS DEATH OF PASSENGER-COLLISION-NEGLIGENCE-INSTRUCTIONS.

In an action for death of a passenger on a railroad train by a collision, an instruction that the burden of showing that the collision occurred by no fault of defendant, and from some inevitable casualty or unavoidable accident or cause beyond the power of human care or foresight to prevent, was on the defendant, merely required the carrier to comply with Civ. Code, 2100, providing that carriers shall use the utmost care and diligence for the safe carriage of passengers, and was not objectionable as requiring too high a degree of care. 2. SAME-BURDEN OF PROOF.

In an action against a carrier for death of a passenger in a collision, the court charged that the burden was on the carrier to show that the collision occurred without its fault, and from inevitable casualty or unavoidable accident, etc., and that it must establish by a preponderance of the evidence that the collision resulted from such unavoidable accident, etc. Held erroneous, as relieving plaintiffs from the burden of establishing their allegation of negligence in the first instance, the court having nowhere instructed that the burden was plaintiffs to establish the truth of their allegation of negligence by a preponderance of the evidence.

3. EVIDENCE-JUDICIAL NOTICE-EXPECTANCY

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In an action for death, it was not error for the court to admit evidence of the life expectancy of the beneficiaries as shown by a mortality table; the jury being instructed that no recovery could be had in any event for a period longer than the probable term of decedent's life.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Death, § 84.]

6. CARRIERS-DEATH OF PASSENGER - CARE REQUIRED--INSTRUCTIONS.

In an action for the death of a passenger, an instruction that railroad companies engaged in transporting passengers for hire are bound to use the best precautions in practical use to secure the safety of passengers was objectionable; such carriers being only required to use the best precautions in "known" practical use.

Department 1. Appeal from Superior Court, Tuolumne County; L. W. Fulkerth, Judge.

Action by Frank Valente and others against the Sierra Railway Company of California. From a judgment in favor of plaintiffs, and from an order denying defendant's motion for a new trial. it appeals. Reversed.

91 P.-31

J. C. Campbell, S. D. Woods, and F. W. Street, for appellant. Nicol & Orr, F. P. Otis, and J. F. Rooney, for respondents.

ANGELLOTTI, J. On June 25, 1904, a collision occurred on the railroad of defendant corporation, between a passenger train and a work train, in which Marie Valente, a passenger on the passenger train, was killed. This is an action by her surviving husband and children for the damages resulting to them from her death, due, it is claimed, to the negligence of defendant. The trial was by jury, and a verdict for $12,000 damages was given. The defendant appeals from the judgment entered thereon, and from an order denying its motion for a new trial.

The complaint alleged the happening of the collision and the death of Mrs. Valente resulting therefrom. These allegations were admitted by defendant in its answer. The complaint further alleged "that said collision was caused by and resulted from the carelessness and negligence of said defendant, and its servants and agents, in the management and operation of its said train, and the death of said Marie Valente was caused by and resulted from the said carelessness and negligence of said defendant, and its servants and agents, in the management and operation of its said train." These allegations were denied by the answer, which further alleged as follows: "On the contrary, said defendant alleges that said collision and the death of said Marie Valente therefrom was and were caused by and resulted from inevitable accident, without any fault or negligence on the part of the said defendant, or of its servants or agents, in any way whatsoever." Upon the trial evidence was introduced by the defendant to meet the prima facie case of negligence made by the showing of the accident. The collision occurred on a very heavy grade, the work train, consisting of an engine, and oil car about half filled with oil, and several flat cars, going down this grade and running into the rear of the passenger train. There was evidence tending to show that the work train was properly equipped, and in first-class order, and that the train hands carefully managed the same, and that the accident was due to the fact that the oil car had sprung a leak, allowing oil therefrom to drip upon the rails, with the result that the train could not be stopped. It is not intimated by plaintiff that the evidence would not have supported a conclusion by the jury that the defendant was free from negligence. Under these circumstances the trial court, after instructing the jury that. by reason of the admission as to the collision and the death of Mrs. Valente therefrom, a presumption arose that the accident resulted from defendant's negligence, and that, in order to rebut such presumption, defendant must show that the collision resulted from some inevitable cas

ualty or unavoidable accident, or from some cause which human care and foresight could not have prevented. instructed the jury as follows: "The burden of showing that the collision occurred by no fault of the defendant and from some inevitable casualty or unavoidable accident or cause beyond the power of human care or foresight to prevent is on the defendant. In order to absolve itself from liability from any loss which may appear from the evidence to have been occasioned by such collision, it must establish by a preponderance of the cridence that such collision was caused by or resulted from some incritable casualty or unavoidable accident or cause beyond human care or foresight to prevent." The court nowhere instructed or intimated to the jury that, upon the whole case, the burden was upon the plaintiffs to establish the truth of their allegation of negligence by a preponderance of evidence.

Complaint is made that these instructions charged defendant with a degree of care entirely unwarranted. This matter was very fully considered by this court in the recent case of Kline v. Santa Barbara, etc., Ry. Co.. 90 Pac. 125, and decided against the contention of defendant. It was shown in the opinion that, as to the particular matter under discussion, it was thoroughly established by our decisions that the language of such instructions was "the equivalent and no more than the equivalent of the rule" enacted in section 2100 of the Civil Code, requiring a carrier of passengers to use the "utmost care and diligence for their safe carriage," and was a correct statement of the rule of law applicable in such cases. The criticism that the words "beyond the power of human care or foresight to prevent" and "cause beyond human care or foresight to prevent" might be construed as meaning that, although the carrier had used the utmost care and diligence, he would still be liable if, after the accident, it appeared that it could have been avoided by a precaution which a very cautious person, not knowing that the accident was about to occur, would not have taken, was also made in that case. The court there, recognizing the true rule to be that the question as to whether the carrier has exercised the proper care and diligence is to be determined in view of the facts and circumstances which existed prior to the accident, declared, in reply to this objection: "It cannot be error, therefore. for a trial court, in submitting a case of this kind to the jury, to state the rule in its approved form, and, if counsel have reason to fear that the jury may understand the rule so pressed as requiring more than the utmost caution of very cautious persons, in view of the circumstances known or imputed to the knowledge of the carrier before the accident, they have the right to propose an instruction embodying the proper qualifications."

We can, however, find no valid answer to

another objection made by defendant to the portion of these instructions that we have italicized. By it the jury was clearly instructed that the defendant must show by a preponderance of evidence that it was not negligent, or, in other words, that it usel the utmost care and diligence, in order to avoid a recovery of the damag s resulting to plaintiff's from the death of Mrs. Valent.. This also was the plain effect of all the instructions taken together. Such is not the

law.

In

In any action for damages resulting from negligence, it is essential to the statement of a cause of action that negligence on the part of the defendant be alleged, and, if the allegation be denied, it must be proved by the plaintiff by a preponderance of the evidence. The affirmative of such an issue is primarily upon the plaintiff. This is elementary law, and, of course, it is not disputed by learned counsel for plaintiffs. Their contention in support of such instruction rests upon the well-settled doctrine, stated in Shearman & Redfield on Negligence. § 59, as follows: "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." accord with this doctrine, it is the rule in this state that, when such an accident is shown by the plaintiff, or admitted by the pleadings, for there can be no difference in effect between the establishment of the fact by evidence on the trial and the admission of that fact by the pleadings, a prima facie case of negligence on the part of the defendant is made, which is sufficient to call upon the defendant to show the exercise of the requisite care, and thus offset the presumption of negligence arising from the happening of the accident. This presumption, however, is simply evidence in the case, having no greater or different effect than the evidence of witnesses showing negligence would have, and in no degree changes the rule as to the burden of proof, in the strict sense of that phrase, viz., the burden of producing a preponderance of evidence. That burden does not shift from side to side in the trial of a case, but constantly remains with the party having the affirmative of the issue, who, in an action for damages for negligence, is the plaintiff. Instructions declaring that, when such an accident is shown, the "burden of showing" want of negligence is on the defendant, do not mean, according to the decisions of this state, that the defendant is compelled to show want of negligence by a preponderance of evidence. The term "burden of showing" or "burden of proof," used in that connection, signifies simply the burden of meeting the prima facie case made by

the plaintiff. This is the only theory upon which such instructions can be held to be free from error, unless we are to hold that the well-settled rule as to the burden of proof being on the party who has the affirmative of the issue has no application in the one case of an action for damages for negligence, where the damage results from an accident to a thing under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care. It is eminently proper to hold that such a showing affords presumptive evidence of negligence, but it would be illogical and contrary to our well-establised practice to hold that any kind of an evidentiary showing made by the party holding the aflirmative of an issue in support of his claim, however strong such showing may be, throws upon the other party the burden of doing anything more than producing evidence enough to offset the effect of the plaintiff's showing. When a defendant has made such a showing as to the exercise of the care required of him by the law as to leave the evidence upon the issue of negligence in such condition that the jury cannot conclude that the negligence has been satisfactorily shown, he has met the requirements of the law, and the verdict must be against the plaintiff. The rule in this regard is no different in the case of a carrier of passengers from the rule applicable to defendants of whom a lesser degree of care is required. The only difference between these classes of defendants is as to the amount of care required; the carrier of passengers being guilty of negligence as to a passenger if he fails to use the "utmost care and diligence."

The rule, as stated by us, is fully recognized and established by our decisions. The case of Scott v. Wood, 81 Cal. 398, 22 Pac. 871, was an action upon a contract, but, in view of an instruction to the jury to the effect that the defendant was required to have a preponderance of testimony upon a certain issue, owing to a presumption of evidence following a showing made by the plaintiff, which instruction was held erroneous, it is directly in point. It is pointed out in the opinion that the term "burden of proof" is used in different senses, sometimes being used to signify the burden of making or meeting a prima facie case, and sometimes the burden of producing a preponderance of evidence, and it was shown that. where it is used in the former sense, it means no more than that it is incumbent on the party against whom the prima facie case has been made to make such a showing that upon the whole case there is not a preponderance of evidence in favor of plaintiff's allegation of negligence. In Kahn v. Triest-Rosenberg Cap Co.. 139 Cal. 340, 73 Pac. 164, a case where the accident, which was admitted, made a prima

facie case of negligence, it was held that instructions to the effect that the burden to prove lack of care and to prove negligence is on the plaintiff throughout the case, and that plaintiff must show the same by a preponderance of evidence, were correct statements of the law, and not in conflict with the other instruction as to the effect of the admission as to the happening of the accident. It was said that the contention of the defendant was founded upon a failure to perceive the effect of the presumption as evidence. The court further said: "This presumption is itself evidence in the case, and it does not change the rule as to the burden of proof. It is merely the evidence by which the plaintiffs undertook to establish the fact which they were bound to prove. It still remained the law that, upon the whole evidence, the plaintiffs must have the preponderance in order to succeed." In Cody v. Market St. Ry. Co., 148 Cal. 90, 82 Pac. 666, a passenger carrier case, it was held that an instruction to the effect that the presumption of negligence arising from proof of the accident and consequent injury threw upon the carrier the burden of showing want of negligence did not require the carrier to show want of negligence by a preponderance of evidence, but only to make such showing "as will leave the jury, with all the evidence before it, unsatisfied as to whether there was negligence on defendant's part." It was also there declared that, in such a case, it was necessary for the plaintiff to prove negligence by a preponderance of evidence. In Patterson v. S. F. & S. M., etc., Co., 147 Cal. 178, 81 Pac. 531, also a passenger carrier case, the questions here involved were exhaustively discussed. It was held that instructions to the effect that, on the issue of negligence the plaintiff has the affirmative of the issue and must prove such negligence by a preponderance of evidence, and that any presumption arising from the accident need not be overcome by a preponderance of evidence, and that, if the railroad company introduce "sufficient evidence simply to balance such presumption without overcoming it by a preponderance of evidence, the presumption is overcome," were correct. See, also, Kay v. Metropolitan, etc., Co., 163 N. Y. 447, 57 N. E. 751.

The cases cited by learned counsel for plaintiffs contain nothing opposed to the views we have stated, with the single exception of the case of Bush v. Barnett. 96 Cal. 202. 31 Pac. 2, a department case. Here the court upheld an instruction that the proof of plaintiff that she had been injured "would cast upon the defendant the burden of proving that the injury was occasioned by inevitable casualty, or by some other cause which human care and foresight could not prevent." This instruction, as we have seen, was correct, and did not throw upon defendant the necessity of proving want of negligence by a

preponderance of evidence. The court in discussing it, however, said that the defense that the injury resulted from some unavoidable accident, or from some cause beyond the power of human care-or foresight to prevent, was an affirmative one, which the rule as to the burden of proof requires him to establish by a preponderance of evidence, as in any other affirmative defense. This statement was erroneous, and in conflict with every decision of this court on the subject. Other cases cited are those where the defense was clearly and strictly an affirmative defense, and it was held simply that the burden is on the defendant to prove new matter alleged as an affirmative defense, which, of course, is the law. Here there was not and could not be any affirmative defense on the issue of negligence. Negligence on the part of defendant was alleged, as it had to be in order that a cause of action be stated. If plaintiff had alleged simply the collision and consequent death of Mrs. Valente, without any allegation of negligence, there would be no claim that the complaint was sufficient. Defendant simply denied the allegation of negligence. What it said in addition as to inevitable accident, etc., was merely supplemental to the denial and superfluous, and in no degree impaired the effect of the denial. It was not the statement of an affirmative defense. We cannot say as a matter of law that this instruction was not prejudicial to defendant. It follows that the judgment and order must be reversed on account thereof.

Several other points are made for a reversal, but they require very little notice for the purposes of a new trial.

The question as to the admission of a table of life expectancy without preliminary proof as to its authenticity and reliability appears to be decided against defendant's contention by the case of Keast v. Santa Ysabel, etc., Co., 136 Cal. 256, 259, 68 Pac. 771, where it is held that the court may admit any table satisfactory to it, requiring or not requiring preliminary proof, depending upon whether of its own knowledge it is satisfied, or whether it desires evidence to satisfy itself, of the authenticity of the table. This ruling is, of course, founded upon the theory that the courts take judicial notice of the standard tables. 20 Am. & Eng. Ency. of Law (2d Ed.) p. 886. We can see no injurious effect in

the admission of evidence as to the life expectancy of the beneficiaries as shown by such a table, provided the jury is clearly instructed that it cannot, in any event, award damages to any one for any period extending beyond the probable term of the life of the deceased. As damages cannot be awarded any particular beneficiary for any period extending beyond such beneficiary's life, it is proper that such beneficiary should be allowed to show that his expectancy of life is as great as that of the deceased, just as the defendant, on the other hand, would be allowed to show that the life expectancy of the beneficiary is less than that of the deceased. See Redfield v. Oakland, etc., Co., 110 Cal. 277, 287, 42 Pac. 822.

The instruction that "Railroad companies engaged in the transportation of passengers for reward are bound to use the best precautions, in practical use, to secure the safety of their passengers," is perhaps too broad a statement as an abstract proposition. The rule as stated in Treadwell v. Whittier, 80 Cal. 593, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175, cited by plaintiffs, is that such companies are bound to use the best precautions in known practical use. This does not mean that such use must, in fact, have been known to a particular defendant, but simply that it must have been such that it would have been known to any company exercising the utmost care and diligence in keeping abreast with modern improvement in the matter of such precautions. We can conceive of cases where a precaution may have been in practical use to such a limited extent that it would not have become known as an improvement to those exercising the utmost care and diligence in this behalf. and in such cases the instruction would be erroneous. Under the evidence given upon the trial, this was not such a case, and the instruction was therefore not prejudicially erroneous. We have considered it necessary to point out the error therein solely for the purpose of a new trial, in view of the possibility that on, such a new trial the matter may be material.

We find no other matter requiring discussion.

The judgment and order denying a new trial are reversed.

We concur: SHAW, J.; SLOSS, J.

(151 Cal. 548)

DAVIS v. DAVIS. (Sac. 1,464.) (Supreme Court of California. July 23, 1907.) DIVORCE ADULTERY-EVIDENCE.

Evidence in an action for divorce held sufficient to sustain a finding of adultery. [Ed. Note.-For cases in point, see Cent. Dig. vol. 17. Divorce, §§ 411-441.]

Department 2. Appeal from Superior Court, Placer County; J. E. Prewett, Judge. Action by Carrie Davis against Sam Davis. Judgment for plaintiff. Defendant appeals. Affirmed.

L. L. Chamberlain, for appellant. A. K. Robinson, for respondent.

MCFARLAND, J. This is an action for a divorce brought by the wife against the husband upon the ground of the latter's adultery with a woman named Myrtle Hall. Defendant in his answer denies the adultery; but the court found as a fact that it was committed as alleged in the complaint, and rendered an interlocutory judgment declaring plaintiff entitled to a divorce. From the judgment, and from an order denying a motion for a new trial, defendant appeals.

The main contention made by the appellant, and the only one calling for special notice, is that the evidence was insufficient to support the finding of the court of the fact of adultery; but this contention is not maintainable. There was sufficient evidence to support the finding. For instance, it was proven without any conflict of evidence that at and about the time of the alleged adultery Myrtle Hall was a public prostitute; that she and defendant were socially very friendly and intimate; that part of the time. appellant was confined in the county jail charged with a certain crime and during that time Myrtle Hall visited him frequently at the jail, and took him meals and delicacies; that afterwards he was released from custody on bai, and then he and said woman were together frequently on the street, and frequently took their meals together at a certain restaurant. Furthermore, Myrtle Hall lived in a "little house opposite the house known as "The Palace,' upon a certain street in the city of Auburn; and there was testimony that he visited her in the said house at least twice. In the face of the foregoing facts and testimony there is no ground for holding here that there was not substantial evidence to warrant the trial court in finding the fact of adultery. We cannot say that the finding was not in accordance with the weight of probabilities. It is true that appellant and the woman Hall testified that appellant did not go into the latter's house, although they admit that he went to the house and conversed with her at the door; but this only made a conflict of evidence which left with the court the power and duty to de

termine where the truth was. Counsel for appellant says that the woman Hall was a witness for appellant in the matter of the criminal prosecution that was hanging over him and that this accounted for the apparent intimate relations between her and appellant; but it is to be presumed that the court considered this circumstance and gave it whatever weight it was entitled to. No doubt; the court, in weighing the probabilities, attached much importance to the fact that she was a woman of unchaste character and conduct.

There are two or three exceptions to rulings made by the court on the admissibility of evidence; but, in the first place, we see no error in any of these rulings, and, in the second place, they do not involve matters of importance enough to justify a reversal, even if erroneous.

The judgment and order appealed from are affirmed.

We concur: HENSHAW, J.; LORIGAN, J.

(47 Wash. 33)

ERICKSON v. HOCHBRUNE. (Supreme Court of Washington. Aug. 27, 1907.) 1. APPEAL — FINDINGS REVIEW FLICTING EVIDENCE.

CON

A finding by the court on conflicting evi-. dence will not be set aside on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3935-3937.] 2. WORK AND LABOR-ACCEPTANCE OF SERVICES.

Plaintiff, who was doing a large amount of grading, needed dirt, which he removed from defendant's lot in grading the same, without any contract with defendant. It had been plaintiff's custom to obtain written contracts for grading, and he attempted to obtain one from defendant, but failed to secure it. Defendant notified plaintiff on several occasions. and twice in the presence of witnesses after the grading was nearly completed, to cease trespassing on his lot, but plaintiff continued and completed the work. Held, that defendant was not estopped to deny that the grading was done with his acquiescence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50. Work and Labor, § 3.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by C. J. Erickson against Ferdinand Hochbrune. From a judgment for defendant, plaintiff appeals. Affirmed.

Shauk & Smith, for appellant. Kerr & McCord, for respondent.

PER CURIAM. Action by C. J. Erickson, plaintiff, against Ferdinand Hochbrune, to foreclose a lien on lot 7, block 44, A. A. Denny's addition to the city of Seattle. The plaintiff alleges that, under an oral contract, he performed work and labor of the value of $1,745.26 in grading the lot by removing dirt therefrom, that no payment had been

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