118 Cal. 55, S. F. 518, Fox v. Oakland Consolidated Street Railway

• Judge: JUDGES: Van Fleet, J. Harrison, J., and Beatty, C. J., concurred.
• Citation: 118 Cal. 55,50 P. 25
• Date: 08 September 1897
• Docket Number: S. F. 518
• Parties: LORIN FOX, Respondent, v. OAKLAND CONSOLIDATED STREET RAILWAY, Appellant
• Court: California Supreme Court

Page 55

118 Cal. 55

50 P. 25

LORIN FOX, Respondent,

v.

OAKLAND CONSOLIDATED STREET RAILWAY, Appellant

S. F. No. 518

Supreme Court of California

September 8, 1897

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Department One

Hearing In Bank Denied.

APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. F. B. Ogden, Judge.

COUNSEL:

Chickering, Thomas & Gregory, and Fitzgerald & Abbott, for Appellant.

The poverty of the plaintiff was not competent to show freedom from contributory negligence. (Mayhew v. Burns , 103 Ind. 328; Indianapolis etc. Ry. Co. v. Pitzer , 109 Ind. 179; 58 Am. Rep. 387; Patterson's Railway Accident Law, 77; Mahoney v. San Francisco etc. Ry. Co ., 110 Cal. 471, 476.) The law does not set up one standard by which to determine the rights or measure the conduct of the rich, and another for the poor. (Hagan's Petition, 5 Dill. 96; Shea v. Potrero etc. R. R. Co ., 44 Cal. 414; Delphi v. Lowery , 74 Ind. 520; 39 Am. Rep. 98; Pittsburgh etc Ry. Co. v. Powers , 74 Ill. 341; Chicago v. O'Brennan , 65 Ill. 160; Sherlock v. Alling , 44 Ind. 184; Illinois Cent. R. R. Co. v. Baches , 55 Ill. 388; Pennsylvania R. R. Co. v. Books , 57 Pa. St. 339; 98 Am. Dec. 229; Chicago etc. Ry. Co. v. Bayfeld , 37 Mich. 205.) We contend that when the evidence is not conflicting, and where the facts are admitted or proved without contradiction, as in the case at bar, it was the duty of the court to determine whether or not plaintiff or his child were guilty of contributory negligence, and that the court should not have submitted to the jury the question as to whether or not the parents exercised reasonable care to prevent the escape of the child onto the street. This rule has been settled by the following cases: Stevenson v. Southern P. Co ., 102 Cal. 143, 144; Davis v. California Street C. R. R. Co ., 105 Cal. 131, 136; Fernandez v. Sacramento etc. Ry. Co ., 52 Cal. 45; Orcutt v. Pacific Coast Ry. Co ., 85 Cal. 291, 298; Glascock v. Central P. R. R. Co ., 73 Cal. 137; Bailey v. Market Street C. Ry. Co ., 110 Cal. 321, 329. The contributory negligence of the parents in permitting their child to be in a place of danger is, in law, the proximate cause of the accident. (Booth on Street Railways, sec. 390; Karr v. Parks , 40 Cal. 188; Roller v. Sutter Street R. R. Co ., 66 Cal. 230; Toledo etc. Ry. Co. v. Grable , 88 Ill. 441; Louisville etc. Ry. Co. v. Murphy, 9 Bush, 522; Williams v. Railway Co ., 60 Tex. 205; Pittsburgh etc. Ry. Co. v. Vining , 27 Ind. 513; 92 Am. Dec. 269; St. Louis etc. Ry. Co. v. Freeman , 36 Ark. 41; Callaghan v. Bean, 9 Allen, 401; Glassey v. Railroad Co ., 57 Pa. St. 172; Jeffersonville etc. R. R. Co. v. Bowen , 40 Ind. 545; Casey v. Smith , 152 Mass. 294; 23 Am. St. Rep. 842; Evansville etc. R. R. Co. v. Wolf , 59 Ind. 89.) The verdict is excessive, being so disproportioned to the injury produced as to show that the jury must have acted through passion or prejudice. (Morgan v. Southern P. Co ., 95 Cal. 510, 519; 29 Am. St. Rep. 143; Wheaton v. North Beach etc. R. R. Co ., 36 Cal. 591; Kinsey v. Wallace , 36 Cal. 462, 480; Tarbell v. Central P. R. R. Co ., 34 Cal. 616, 623; Aldrich v. Palmer , 24 Cal. 513; McCarty v. Fremont , 23 Cal. 196; Russell v. Dennison , 45 Cal. 337; 50 Cal. 243; Phelps v. Cogswell , 70 Cal. 201; Vicksburg v. McLain , 67 Miss. 4; Potter v. Chicago etc. R. R. Co ., 22 Wis. 615; Gunderson v. Northwestern Elevator Co ., 47 Minn. 161; Strutzel v. St. Paul etc. Ry. Co ., 47 Minn. 543.) The evidence was not sufficient to show negligence of the defendant, which cannot be presumed from the fact of injury, and there is no substantial proof of want of ordinary care. (Roller v. Sutter Street R. R. Co ., 66 Cal. 230; Bailey v. Market Street etc. Ry. Co., supra; Booth on Street Railway Law, sec. 323; Maschik v. St. Louis etc. Ry. Co ., 71 Mo. 276; Fenton v. Railway Co ., 126 N.Y. 625; Citizens' Street Ry. Co. v. Cary , 56 Ind. 396; Chrystal v. Troy etc. R. R. Co ., 105 N.Y. 164.) There was no substantial conflict in the evidence. (Driscoll v. Market Street etc. Ry. Co ., 97 Cal. 553, 562, 563; 33 Am. St. Rep. 203.)

Frederick E. Whitney, and M. C. Chapman, for Respondent.

Though there is conflict in the authorities, the weight of reason and authority is in favor of the position that a parent of limited means, who cannot maintain help in the care of his child, and has no playground for it, is only responsible for ordinary care, under the circumstances in which he is placed, while ordinary care, in a person of more means, might require greater safeguards. (Hedin v. City etc. Ry. Co ., 26 Or. 155; Kay v. Pennsylvania R. R. Co ., 65 Pa. St. 277; Pittsburgh etc. R. R. Co. v. Pearson , 72 Pa. St. 169; Philadelphia etc. R. R. Co. v. Long , 75 Pa. St. 257; Winters v. Kansas City etc. Ry. Co ., 99 Mo. 520; 17 Am. St. Rep. 591; Walters v. Chicago etc. R. R. Co ., 41 Iowa 71, 78; Beach on Contributory Negligence, sec. 135, p. 172.) The question of contributory negligence, under the circumstances of this case, was one of fact for the jury. (Hedin v. City etc. Ry. Co., supra ; Schierhold v. North Beach etc. R. R. Co ., 40 Cal. 447, 454; Birkett v. Knickerbocker Ice Co ., 110 N.Y. 504, 507; Kunz v. Troy , 104 N.Y. 344, 352; 58 Am. Rep. 508; Morgan v. Illinois etc. Bridge Co ., 5 Dill. 96; Weissner v. St. Paul etc. Ry. Co ., 47 Minn. 468, 471; Weil v. Dry Dock etc. Ry. Co ., 119 N.Y. 147, 152; Houston City etc. Ry. Co. v. Dillon, 3 Tex. Civ. App. 303; Baker v. Flint etc. R. R. Co ., 91 Mich. 298, 307, 308; 30 Am. St. Rep. 471.) If plaintiff was negligent in permitting the child to be upon the street, yet, under the facts, it being possible to stop the car in time to avoid the injury, defendant is liable, ordinary negligence in case of an adult being gross negligence in case of an infant. (Schierhold v. North Beach etc. R. R. Co., supra ; Walters v. Chicago etc. R. R. Co., supra; Little Rock etc. Ry. Co. v. Barker , 39 Ark. 491; Indianapolis etc. Ry. Co. v. Pitzer , 109 Ind. 179; 58 Am. Rep. 387; Farris v. Cass Avenue etc. Ry. Co ., 80 Mo. 325, 328; Schwier v. New York etc. R. R. Co ., 90 N.Y. 558.) A railroad company is liable for gross negligence notwithstanding the existence of contributory negligence. (Esrey v. Southern P. Co ., 103 Cal. 541; Meeks v. Southern P. R. R. Co ., 56 Cal. 513; 38 Am. Rep. 67, 70; Frazer v. Railroad Co ., 81 Ala. 185; Becker v. Cincinnati St. Ry. Co ., 2 Ohio Dec. 137; Winters v. Kansas City R. R. Co ., 99 Mo. 509, 520; 17 Am. St. Rep. 591.) The denial of the motion to compel an election is not reviewable upon appeal. (People v. Briggs , 114 N.Y. 56; Brady v. Ludlow Mfg. Co ., 154 Mass. 468.) No special damages were necessary to be averred in this case, and the complaint supports the general verdict. (Morgan v. Southern P. Co ., 95 Cal. 510, 520; 29 Am. St. Rep. 143; Gebbie v. Mooney , 121 Ill. 255; Schultz v. Third Avenue R. R. Co ., 89 N.Y. 242, 246, 247.) An objection of uncertainty in pleading cannot be raised for the first time on appeal. (Seligman v. Armando , 94 Cal. 314.) The question of credibility of witnesses and probability of their evidence is for the jury. (Morgan v. Southern P. Co., supra .) The verdict was not excessive. The jury had discretion as to the amount of damages, and no absolute standard can be fixed. (Redfield v. Oakland etc. Ry. Co ., 110 Cal. 277, 285, 286; Howland v. Oakland etc. Ry. Co ., 110 Cal. 513; Lake Erie etc. Ry. Co. v. Acres , 108 Ind. 548; Louisville etc. Ry. Co. v. Pedigo , 108 Ind. 481; Louisville etc. Ry. Co. v. Falvey , 104 Ind. 409; Louisville etc. Ry. Co. v. Wood , 113 Ind. 544.)

JUDGES: Van Fleet, J. Harrison, J., and Beatty, C. J., concurred.

OPINION

VAN FLEET, Judge

Page 60

[50 P. 26] Action by the father to recover damages resulting from the death of his infant son, alleged to have been caused by the negligence of defendant in running over him with one of its electric cars.

Judgment was for plaintiff, and defendant appeals therefrom and from an order denying it a new trial.

1. Appellant devotes a considerable portion of its brief in an effort to convince us that the evidence fails to show any negligence on the part of defendant. The task has proven fruitless. An examination of the evidence discloses a substantial conflict upon that issue, however much it may be said to preponderate in defendant's favor. Much of counsel's argument in this behalf is expended in endeavoring to demonstrate that the two witnesses whose testimony tends to create the conflict were wholly unworthy of credence, and that therefore the evidence, while apparently conflicting, is not so in substance. But the credibility of witnesses is a question for the jury, so long as the testimony which they give has a legal tendency to establish the fact, and where, as here, there is nothing so inherently or otherwise manifestly improbable in its character as to justify the court in ignoring it.

2. Appellant also contends that under the evidence the plaintiff was shown to have been guilty of contributory negligence in permitting his child to expose himself unattended and unprotected to the dangers of the street, and that that issue should have been withheld from the jury.

The evidence upon this question was in substance this: Plaintiff's dwelling fronted on Tenth street, in the city of Oakland, about one hundred feet from Franklin street, along which ran defendant's railway; his family consisted, at the time, of his wife, a daughter of about thirteen years, and the boy that was killed, aged four and one-half years. The father worked at his trade, and was away from home during the day; the daughter attended school, the little boy remaining at home with his mother, who did her own work. The boy was permitted to play on the sidewalk, there being no front yard, and...