Wahlgreen v. Market Street Railway Co.

62 P. 308, 132 Cal. 656, 1901 Cal. LEXIS 1117

• Court: California Supreme Court
• Decided: May 9, 1901
• Docket: S.F. No. 2226.
• Status: Published

Opinions

Upon the argument following the rehearing in this case, it was urged, first, that the evidence showed beyond a conflict that plaintiff was guilty of contributory negligence. This matter is considered in the opinion heretofore rendered in Department, and the conclusion was there expressed, that the question of the contributory negligence of the plaintiff was one which, under the facts, was proper for the determination of the jury. Further consideration serves but to confirm the soundness of the Department's conclusion in this regard.

Appellant's second complaint is, that the following instruction proposed by it was refused by the court: "A defendant cannot be charged with damages for injury to a plaintiff, notwithstanding the contributory negligence, if there be such, of the plaintiff, unless the danger of the plaintiff was actually known to the defendant in time, so that the injuries could have been avoided by the exercise of ordinary care; and a defendant, under such circumstances, is not liable in damages, merely because he ought to have known of the plaintiff's danger, and could have known of it but for remissness on his part; a defendant in such a case must have actually known of the plaintiff's danger. If, therefore, the plaintiff in this case, by using her senses with ordinary care as she approached the track, could have observed the car moving on such track in time to avoid danger, but failed to look or to listen, in the exercise of ordinary care, even though you should find that the defendant did not know of her presence prior to the accident, and should further find that the defendant, by keeping a lookout, or using any other precaution in the exercise of ordinary care, could have made itself aware of her danger, your verdict, none the less, should be for the defendant."

This instruction, it may be conceded, is a correct exposition of the law governing the rather rare and exceptional cases to which it applies. (See Herbert v. Southern Pac. Co., 121 Cal. 227. ) But in the present instance the giving of this instruction would have been the injection into the case of no new element. It was but the elaboration of the legal proposition which the court in different parts of its instructions had several times declared to the jury. Thus the jury were instructed: "Assuming the duty of the railroad company to anticipate that persons would walk along the sidewalk and cross the track at the car-house door, there is also, and there was, a duty on the part of this plaintiff, under the evidence here, to exercise reasonable and ordinary care in approaching and crossing the track; and if it should appear that the railroad company, in the exercise of ordinary care, could have observed, but did not observe, the plaintiff as she approached the track, in time to avoid accident, nevertheless, if it should further appear that the plaintiff herself, in the exercise of ordinary care, by using her eyes or ears before she was struck, could have observed the approach of the car on such track, and so have avoided the accident, her failure to exercise such care, and thus to make use of her eyes and ears, is contributory negligence, and in such event the verdict must be for the defendant." And again they were told: "If you find from the evidence that the plaintiff failed to use ordinary care in approaching the track at the car-house door, up to the time that she was struck, and if you should further find that the railroad employees did not observe her, then, even though no bell whatever was rung, the verdict must be for the defendant. But the question whether a bell was rung is for the jury to determine, upon a fair consideration of the entire evidence, and the question whether the bell should have been rung is also for you." And still further they were advised: "If you find from the evidence that the plaintiff was injured while attempting to cross this track at the car-house, in front of a car approaching dangerously near, which she knew, or by using her faculties with ordinary care could have known, was dangerously near, and which might have passed her in safety, had she paused for a few seconds before making the attempt to cross, then she was guilty of contributory negligence, and your verdict must be for the defendant, even though you should believe that the railroad company did not ring any bells or maintain any lookout at the place of this accident."

Indeed, reading and considering the instructions as a whole, they omitted no point of law to the giving of which defendant was entitled, and were as favorable to the defendant as justice could permit.

Therefore the opinion heretofore rendered in Department is adopted and approved and the judgment and order appealed from are affirmed.

Harrison, J., Van Dyke, J., Garoutte, J., McFarland, J., and Temple, J. concurred.

The following is the opinion rendered in Department One, September 17, 1900: —