13 Cal. 599, Fairchild v. California Stage Co.

Citation:13 Cal. 599
Opinion Judge:BALDWIN, Judge
Attorney:Rearden & Smith, for Appellant, Mesick & Swezy, for Respondent,
Judge Panel:JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
Case Date:July 01, 1859
Court:Supreme Court of California

Page 599

13 Cal. 599




Supreme Court of California

July, 1859

Page 600

Appeal from the Tenth District.

In addition to the instructions set forth in the opinion, the others referred to are as follows:

Second Instruction.--" That if the jury believe that a want of proper skill or care of the driver, placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe, from the position in which the stage was placed by the negligence and recklessness of the driver, that the movement of a portion of the passengers may have increased the peril, and even caused the stage to upset. In such a case the fault is first with the driver, and the defendants are liable."

Seventh Instruction.--" If the jury find that the defendants were carriers of passengers, then the law requires that they should employ drivers having competent skill, well acquainted with the road they undertake to drive over, and they must provide them with steady horses, a coach, and harness, of sufficient strength and properly made, and the coach must be properly loaded. If there is the least failure in any of those things the duty of the coach proprietors is not fulfilled, and they are responsible for any injury or damage that happens on account thereof."

On the trial, the defendant asked the following " instruction," which was refused:

" That if the jury believe, from the evidence, the driver of defendant's stage coach used all due and necessary diligence, and that the upsetting of the stage-coach was the result of accident or misfortune, then they should find for the defendants."


Rearden & Smith, for Appellant, to the point that carriers of passengers are responsible only for want of due care and skill, cited: Burke v. C. & O. R. R., 13 Wend. 626; Boyce v. Audum, 2 Pet. 156; Maury v. Talmy, 2 McLean, 161, 162; 9 Met. 13-15; 21 Conn. 253; 2 Greenl. Ev. Sec. 253 and note, and Sec. 267 and note; 21 Wend. 618; 2 Kent, 769.

Mesick & Swezy, for Respondent, cited: Angell on Com. Carriers, Secs. 568, 569; Edwards on Bailment, 585, 586; Story on Bailment, 594; 22 Conn. 298; 2 McLean, 166; 1 Id. 552; 13 Pet. 185.

The admission of new evidence, if any was offered after close by defendant, was matter of discretion in the DistrictCourt. (6 Barb. 132.)

JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.



Page 601

This action was brought to recover damages for certain injuries sustained by the plaintiff by the careless overturning of a stage-coach in which she was a passenger. A verdict was rendered for the plaintiff for two thousand two hundred and fifty dollars damages. A motion for a new trial was made and overruled.

The main questions arise on certain instructions given and refused. It is not deemed necessary to notice at large the points--that the evidence did not warrant the verdict, and that the damages are excessive. We have read the body of proofs in the...

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