Eoss, J.:
Except in one aspect of the case we need not allude to the pathetic side of the accident which in an instant brought death to five children, the oldest of whom was but sixteen and the youngest but five years of age. The action is by the father against the Bailroad Company for damages for the loss of his children. If there was no negligence on the part of [332]*332the defendant, of course the plaintiff can not recover. And even if there was great negligence on its part, yet if the accident was brought about in part by a want of ordinary care on the part of the deceased, a like result must follow.
The first inquiry, therefore, is: Is there any evidence going to show negligence on the part of the defendant ?
The accident occurred in the afternoon of a lovely day in May. The children killed were returning home from a Mayday picnic, in a light wagon drawn by one gentle horse. The oldest—a girl of sixteen—was driving. She was acquainted with the highway over which she was passing and with the point at which it was crossed by the railroad track. Several persons in vehicles preceded her on the highway, and had crossed the railroad, the nearest one—Meeks—being some 400 feet in advance; and she was followed by a boy thirteen years old, at a considerable distance in the rear. On the railroad, about 335 feet from the point of crossing, was a covered bridge. On either side of the railroad, between the bridge and its intersection with the highway, were a number of eucalyptus trees planted by the defendant, and which had attained such size as, according to some of the testimony in the case, prevented—in connection with some neighboring orchards— an approaching train from being seen by those traveling the highway, until the traveler should reach a point very close to the railroad track. There is also evidence going to show that at the time of the accident the train was slightly behind time and was running at the rate of from 33 to 35 miles per hour, whereas the rate at which the trains usually ran at that point was from 25 to 30 miles an hour. Further, there was some evidence tending to show that the bell was not rung nor the whistle blown. In the recent case of Kellogg v. N. Y. C. & Hudson R. R. R. Co., reported in 79 N. Y. 72, the only negligence on the part of the defendant submitted to the jury, was its omission to ring the bell at the crossing, and the Court of Appeals held in that case, that while there was a great preponderance of evidence that the bell was rung, the Court could not say that there was not some conflict in the evidence upon that question proper for submission to the jury. “ There was some evidence,” said the Court, “ tending to show the bell [333]*333was not rung, and we can not say as matter of law that the jury was bound to disregard it.”
In the case before us, the engineer and fireman of the locomotive were on the stand as witnesses, and neither of them was asked as to whether the bell was rung or the whistle blown. The engineer testified that when he first saw the children they were within about ten feet of the railroad track and the train was between the bridge and the crossing; that he at once put on the air-brake, but to stop the train was out of the question. The boy spoken of, who appears, from his testimony as reported in the record, to be a bright lad, testified that from the position he occupied on the highway he heard the rumble of the train as it passed through the covered bridge, but that he did not hear the bell nor the whistle; that he was in a position where he could have heard them, and that he was in the habit of hearing them at that point, having occasion frequently to pass there; while, on the other hand, the witness Meeks testified that from his position he heard both the bell and the whistle.
It was for the jury to pass upon the effect of this testimony. Besides, the increased speed, under the circumstances appearing, certainly tended to show negligence on the part of the defendant.
It was held, in the case of the Continental Improvement Company v. Stead, 95 U. S. 163, that “ where the view is obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides. Those in charge of the train should approach the crossing at a less rate of speed, and use increased diligence to give warning of its approach.” And in the case of the Louisville C. and L. Railroad Company v. Goetz’s Administratrix, decided by the Court of Appeals of Kentucky, September 13,1881, the crossing of a turnpike by the railroad “ on a descending grade, running thirty miles or more an hour, with no other signal or warning than a whistle within seventy yards of the crossing, to warn those traveling on the turnpike of its approach,” was of itself held culpable negligence. (12 Reporter, 618.)
Clearly, we would not be justified in holding that the testimony in the case now here was not such as entitled the [334]*334plaintiff to have it submitted to the jury, or that, being so submitted, it is not sufficient to support the verdict of the jury finding negligence on the part of the defendant.,
Next, was there such contributory negligence on the part of the deceased as precludes a recovery by the plaintiff?
On this branch of the case the law is: “If it clearly appears from the undisputed facts, judged of in the light of that common knowledge and experience of which Courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, the question of negligence is one of law, to be decided by the Court. In all other cases the question must be submitted to the jury under proper instructions.” (Fernandes v. Sacramento City Railway Co., 52 Cal. 52, and the numerous authorities there cited.)
This being the law, we are of opinion that the present case was properly submitted to the jury, and that there is no valid reason for disturbing their finding that there was no contributory negligence on the part of the deceased.
It has already been decided here that contributory negligence on the part of the injured party, is a matter of defense, to be proved affirmatively by the defendant, unless it can be inferred from circumstances proved by the plaintiff. (Robinson v. W. P. R. R. Co., 48 Cal. 426, and authorities there cited.)
Apart of the circumstances in the present case have already been detailed. It has been seen that the children were preceded a considerable distance on the highway by the witness Meeks. Some distance ahead of him was “Smalley’s stage,” in which were a number of people. As Meeks approached the railroad track he noticed that the passengers in the stage were waving their hats and handkerchiefs at him, but he did not understand why. As he crossed the track he looked down it and saw the train at a distance, as he supposes, of from 1,500 to 2,000 feet beyond the bridge. Meeks, who was driving a good team, at a good road gait, passed the railroad track, and, observing that the passengers in the stage continued to wave their hats and handkerchiefs, stopped and looked back to see if there was not some one behind him to whom they were waving, and saw the wagon, in which were the children, coming up the grade that leads up to the track [335]*335at the crossing.
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Eoss, J.:
Except in one aspect of the case we need not allude to the pathetic side of the accident which in an instant brought death to five children, the oldest of whom was but sixteen and the youngest but five years of age. The action is by the father against the Bailroad Company for damages for the loss of his children. If there was no negligence on the part of [332]*332the defendant, of course the plaintiff can not recover. And even if there was great negligence on its part, yet if the accident was brought about in part by a want of ordinary care on the part of the deceased, a like result must follow.
The first inquiry, therefore, is: Is there any evidence going to show negligence on the part of the defendant ?
The accident occurred in the afternoon of a lovely day in May. The children killed were returning home from a Mayday picnic, in a light wagon drawn by one gentle horse. The oldest—a girl of sixteen—was driving. She was acquainted with the highway over which she was passing and with the point at which it was crossed by the railroad track. Several persons in vehicles preceded her on the highway, and had crossed the railroad, the nearest one—Meeks—being some 400 feet in advance; and she was followed by a boy thirteen years old, at a considerable distance in the rear. On the railroad, about 335 feet from the point of crossing, was a covered bridge. On either side of the railroad, between the bridge and its intersection with the highway, were a number of eucalyptus trees planted by the defendant, and which had attained such size as, according to some of the testimony in the case, prevented—in connection with some neighboring orchards— an approaching train from being seen by those traveling the highway, until the traveler should reach a point very close to the railroad track. There is also evidence going to show that at the time of the accident the train was slightly behind time and was running at the rate of from 33 to 35 miles per hour, whereas the rate at which the trains usually ran at that point was from 25 to 30 miles an hour. Further, there was some evidence tending to show that the bell was not rung nor the whistle blown. In the recent case of Kellogg v. N. Y. C. & Hudson R. R. R. Co., reported in 79 N. Y. 72, the only negligence on the part of the defendant submitted to the jury, was its omission to ring the bell at the crossing, and the Court of Appeals held in that case, that while there was a great preponderance of evidence that the bell was rung, the Court could not say that there was not some conflict in the evidence upon that question proper for submission to the jury. “ There was some evidence,” said the Court, “ tending to show the bell [333]*333was not rung, and we can not say as matter of law that the jury was bound to disregard it.”
In the case before us, the engineer and fireman of the locomotive were on the stand as witnesses, and neither of them was asked as to whether the bell was rung or the whistle blown. The engineer testified that when he first saw the children they were within about ten feet of the railroad track and the train was between the bridge and the crossing; that he at once put on the air-brake, but to stop the train was out of the question. The boy spoken of, who appears, from his testimony as reported in the record, to be a bright lad, testified that from the position he occupied on the highway he heard the rumble of the train as it passed through the covered bridge, but that he did not hear the bell nor the whistle; that he was in a position where he could have heard them, and that he was in the habit of hearing them at that point, having occasion frequently to pass there; while, on the other hand, the witness Meeks testified that from his position he heard both the bell and the whistle.
It was for the jury to pass upon the effect of this testimony. Besides, the increased speed, under the circumstances appearing, certainly tended to show negligence on the part of the defendant.
It was held, in the case of the Continental Improvement Company v. Stead, 95 U. S. 163, that “ where the view is obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides. Those in charge of the train should approach the crossing at a less rate of speed, and use increased diligence to give warning of its approach.” And in the case of the Louisville C. and L. Railroad Company v. Goetz’s Administratrix, decided by the Court of Appeals of Kentucky, September 13,1881, the crossing of a turnpike by the railroad “ on a descending grade, running thirty miles or more an hour, with no other signal or warning than a whistle within seventy yards of the crossing, to warn those traveling on the turnpike of its approach,” was of itself held culpable negligence. (12 Reporter, 618.)
Clearly, we would not be justified in holding that the testimony in the case now here was not such as entitled the [334]*334plaintiff to have it submitted to the jury, or that, being so submitted, it is not sufficient to support the verdict of the jury finding negligence on the part of the defendant.,
Next, was there such contributory negligence on the part of the deceased as precludes a recovery by the plaintiff?
On this branch of the case the law is: “If it clearly appears from the undisputed facts, judged of in the light of that common knowledge and experience of which Courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, the question of negligence is one of law, to be decided by the Court. In all other cases the question must be submitted to the jury under proper instructions.” (Fernandes v. Sacramento City Railway Co., 52 Cal. 52, and the numerous authorities there cited.)
This being the law, we are of opinion that the present case was properly submitted to the jury, and that there is no valid reason for disturbing their finding that there was no contributory negligence on the part of the deceased.
It has already been decided here that contributory negligence on the part of the injured party, is a matter of defense, to be proved affirmatively by the defendant, unless it can be inferred from circumstances proved by the plaintiff. (Robinson v. W. P. R. R. Co., 48 Cal. 426, and authorities there cited.)
Apart of the circumstances in the present case have already been detailed. It has been seen that the children were preceded a considerable distance on the highway by the witness Meeks. Some distance ahead of him was “Smalley’s stage,” in which were a number of people. As Meeks approached the railroad track he noticed that the passengers in the stage were waving their hats and handkerchiefs at him, but he did not understand why. As he crossed the track he looked down it and saw the train at a distance, as he supposes, of from 1,500 to 2,000 feet beyond the bridge. Meeks, who was driving a good team, at a good road gait, passed the railroad track, and, observing that the passengers in the stage continued to wave their hats and handkerchiefs, stopped and looked back to see if there was not some one behind him to whom they were waving, and saw the wagon, in which were the children, coming up the grade that leads up to the track [335]*335at the crossing. Meeks further testified that when the children got close to the track they seemed to have discovered the train and to urge the horse on, and that the horse, as the train approached, swerved to the left, and a moment after he saw the horse in the air.
It will be borne in mind that the testimony went to show that because of intervening trees, those traveling along the highway in the direction the children were going, could not see an approaching train until they had reached a point very near the railroad track. A part of the trees that thus obscured the view, were planted and permitted to grow by the defendant along its track, and within its right of way. At the time of the accident, according to the testimony of Meeks, a wind was blowing, which caused the trees to rustle; and this, it may be, prevented the children—who were much nearer the railroad track and consequently much nearer the trees, than were Meeks or the boy—from hearing the rumbling of the train, while both Meeks and the boy did hear it, according to their testimony. It is not to be presumed that the girl who was driving, recklessly or carelessly, imperiled her own life and the lives of her younger brothers and sisters.
And from the testimony of the engineer of the locomotive, as well as from that of Meeks and the boy, it is quite certain that the children must have been dangerously near the track before they were made aware of the approach of the train. The engineer, according to his testimony, was in the cab and on the lookout. When he first saw them they were within about ten feet of the track; and as he saw the horse before he saw the children, it is not probable if possible that they could have seen the train until they reached a point dangerous in the extreme. The engineer further testified that the horse was on a trot when he first saw him, stopped when within about five feet of the track, turned his head to the driver’s left, and then started on again, when the crash came. As the train was running at a rapid rate and was between the bridge and the crossing when the horse was first discovered, of course all of this could have taken at most but a few seconds of time. It is by no means clear that the children could have escaped by the exercise of the utmost coolness and discretion. But in such cases, such a degree of care is never required of those [336]*336traveling a highway. Certainly these children were not hound to exercise more care than a prudent man approaching such a place would ordinarily exercise for his protection (Authorities supra, and Schierhold v. N. B. & M. R. R. Co., 40 Cal. 447; Richardson v. N. Y. Central R. R., 45 N. Y. 846; Ernst v. Hudson R. R. R. Co., 35 N. Y. 9.) There is no proof that they were heedless, and under all the circumstances surrounding the accident, we think it was for the jury to determine whether they exercised that care which the law required of them.
There only remains to he considered whether the damages awarded the plaintiff by the jury—ten thousand eight hundred dollars—are excessive.
It is not claimed by the learned counsel for the appellant that this is so, unless the law he, as claimed by him, that the jury was limited to the actual pecuniary injury sustained by the plaintiff by reason of the loss of the services of his children. Such is not the law in this State. (Code of Civil Procedure, §§ 376 and 377; Beeson v. Green Mountain G. M. Co., 57 Cal. 20; Cook v. Clay-street Hill Co., 9 Pac. C. L. J. 605.)
In view of the rule of damages prevailing here, we can not he reasonably expected to hold that for such a loss as the plaintiff in this case sustained, the amount awarded him by the jury was excessive.
Judgment affirmed.
McKinstry and Sharpstein, JJ., and Morrison, C. J. concurred.