160 Cal. 237, S. F. 5075, Zibbell v. Southern Pacific Company (A Corporation)

Docket Nº:S. F. 5075
Citation:160 Cal. 237, 116 P. 513
Opinion Judge:HENSHAW, Judge
Party Name:WILLARD R. ZIBBELL, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), et al., Appellants
Attorney:L. L. Cory, and P. F. Dunne, for Appellants. Sullivan & Sullivan, and Theo. J. Roche, and Evarts & Ewing, for Respondent.
Judge Panel:JUDGES: In Bank. Henshaw, J. Melvin, J., Lorigan, J., Shaw, J., Angellotti, J., and Sloss, J., concurred.
Case Date:June 20, 1911
Court:Supreme Court of California

Page 237

160 Cal. 237

116 P. 513



SOUTHERN PACIFIC COMPANY (a Corporation), et al., Appellants

S. F. No. 5075

Supreme Court of California

June 20, 1911

Page 238

[Copyrighted Material Omitted]

Page 239

Rehearing denied.

APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. George E. Church, Judge.

For which reasons the judgment and order as to defendant Pope are reversed and as to the other defendants they are affirmed.


L. L. Cory, and P. F. Dunne, for Appellants.

Sullivan & Sullivan, and Theo. J. Roche, and Evarts & Ewing, for Respondent.

JUDGES: In Bank. Henshaw, J. Melvin, J., Lorigan, J., Shaw, J., Angellotti, J., and Sloss, J., concurred.



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[116 P. 514] This is an action to recover damages for personal injuries. The defendants are the Southern Pacific Company and certain of its employees in the charge and operation of a switch engine with the cars thereto attached, by which the injuries were inflicted. The verdict of the jury was in favor of the plaintiff against all of the defendants. The appeal from the judgment and from the order denying their motion for a new trial is taken by all of the defendants.

The question most earnestly and elaborately argued by all the parties to this appeal is whether or not the evidence establishes the contributory negligence of plaintiff. The determination of this question necessarily involves consideration of the facts in evidence. Before entering upon this consideration, however, the rules of law governing the doctrine of contributory negligence require brief -- though very brief -- statement. We say very brief, for, while the zeal, industry, and research of counsel have been tireless in the collocation and presentation of the cases bearing upon the question, -- in a jurisdiction such as this, where the subject has by this court received frequent and elaborate exposition, little can be gained by going afield for authorities. And this is so because of the very nature of the question involved. Whether or not a plaintiff has been [116 P. 515] guilty of contributory negligence is similar to the question whether or not the evidence in a criminal case is sufficient to sustain a verdict of guilty. It is usually a question of fact. It is a question of law only when the evidence is of such a character that it will support no other legitimate inference than that in the one case the plaintiff was guilty of contributory negligence, in the other case that there was not sufficient evidence to sustain the verdict. But even in such cases, while the question is said, and properly said, to be one of law, it is never a question of pure law. The real decision of the question by the court is a decision of fact. When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plaintiff a recovery. It must follow, therefore, that cases from other jurisdictions can be of value to such a consideration only when one may be found which parallels in all

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its essential features the case under consideration. This, in the nature of things, can never, or rarely, happen. And even if such a case be found, it cannot in any true sense be said to settle the law. Its value will come from the persuasive force of its reasoning -- not upon the law -- but upon the facts to which the law forbidding the recovery has been applied.

The law of this state is so well settled that it may be briefly summarized. Contributory negligence is a defense the burden of proving which rests upon defendant. (Schneider v. Market St. Ry. Co., 134 Cal. 482, [66 P. 734]; Hutson v. Southern California Ry. Co., 150 Cal. 701, [89 P. 1093]. Therefore in this state it is not incumbent upon the plaintiff -- as it is in certain other jurisdictions -- to establish affirmatively that he was free from negligence. It is incumbent upon the defendant to establish the existence of plaintiff's contributing negligence. Again, the question whether or not a plaintiff has been guilty of contributory negligence is usually one of fact for the jury's verdict.

" It is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from the evidence, that the court can say, as a matter of law, that contributory negligence is established. Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury." (Johnson v. Southern Pacific R. R. Co., 154 Cal. 285, [97 P. 520]; Seller v. Market St. Ry. Co., 139 Cal. 268, [72 P. 1006]; Herbert v. Southern Pacific Co., 121 Cal. 227, [53 P. 651] .)

Finally, it is to be pointed out that, while in every case of a true conflict in evidence the determination and decision is for the jury, the conflict must, in fact, be real. This has application to that class of cases where the plaintiff, struck by an approaching train, testifies that he did look, and did listen, and did not see, and did not hear, the approaching train; yet all the other evidence, including the physical facts and conditions is such as necessarily forces the conclusion, either that he did not look and did not listen (or he must have seen or heard the train), or that, if he did look and did listen, he looked with unseeing eyes and listened with unhearing ears. This is in accord with the general rule touching the weight of evidence that neither court nor jury is

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bound by the mere declaration of a witness -- no matter how improbable, incredible, or impossible, that declaration may be. It is a principle recognized in all cases. (County of Sonoma v. Stofen, 125 Cal. 35, [57 P. 681]; Quock Ting v. United States, 140 U.S. 417, [11 S.Ct. 733, 851, 35 L.Ed. 901]; The William Gray, 1 Paine (U.S.) 116 F. Cas. No. 17,694]; Nelson v. Betts, L. R. 5 Eng. Ir. App. Cas. 1, 20.) The matter is briefly and vigorously summed up by Lord Stowell, in The Odin, 1 A. Rob. 248, when he says: --

" It is a wild conceit that any court of justice is bound by the mere swearing; it is swearing credibly that is to conclude its judgment."

In railroad damage cases, as in all other classes and kinds of cases, this rule has been applied when and as in the judgment of the judges it should be applied. And it is sufficient to refer to such cases as Hook v. Missouri P. R. Co., 162 Mo. 569, [63 S.W. 360]; Artz v. Chicago etc. R. Co., 34 Iowa 154; Browne v. New York Central R. Co., 87 A.D. 206, [83 N.Y.S. 1028]; Fox v. Pennsylvania R. Co., 195 Pa. St. 438, [46 A. 106]; Chicago etc. Ry. Co. v. Kirby, 86 Ill.App. 57; Peters v. Southern R. Co., 135 Ala. 533, [33 So. 332]; Wardner v. Great Northern Ry. Co., 96 Minn. 382, [104 N.W. 1084]; Chicago etc. Ry. Co. v. Andrews, 130 F. 65, [64 C. C. A. 399]; Blumenthal v. Boston etc. R. Co., 97 Me. 255, [54 A. 747]. The subject is well summarized by the supreme court of Missouri in Hook v. Missouri P. R. Co., 162 Mo. 569, [63 S.W. 360], as follows: --

" When to look is to see, the mere utterance that one did look and could not see, will be disregarded as testimony by the court, and no additional value is to be given to the utterance because of the fact that a jury, under the direction of the trial court, has predicated a finding thereon. As the law does not permit a witness to blind his eyes to the sight of an approaching train in full view of a crossing he is to pass, neither will the eye of the law become blinded to the true situation of the case merely because of the absurd statement of a witness or witnesses, 'I looked and could not see,' or the jury's indorsement of it by a finding predicated thereon, when to look was to see."

It is in the category of the cases last referred to that appellants insist the case at bar belongs. Their contention,

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in brief, is that, giving all the credit to plaintiff's testimony to which it [116 P. 516] is entitled, the physical facts and circumstances demonstrate that he could not have met with the accident without contributing fault of his own. We are thus brought to a consideration of the evidence, and, since the jury's determination from that evidence was the exoneration of plaintiff from the charge of contributory negligence, we must, in considering it, bear in mind that, of the reasonable inferences which the evidence will bear, those supporting plaintiff's contention are to be regarded as having been adopted by the jury.

The accident occurred about half past nine o'clock in the evening of July 12th. Plaintiff's occupation was the breeding and training of trotting horses. He was expecting certain of his horses by railroad, and was going with a companion to the railroad yards to see whether they had arrived. The two were proceeding westerly along the southerly line of Tulare Street, a public highway in the city of Fresno. Tulare Street crosses the right of way of the defendant company at practically right angles thereto -- the street extending east and west, the railroad tracks north and south. Tulare Street is the main artery leading from the city proper to the west side (meaning west of the railroad tracks), which was plaintiff's destination. Tulare Street, going from the east side to the west side, crosses eight lines of track in the freight yards of the Southern Pacific Company. There are varying distances between these lines of track. Numbering these tracks successively, and naming the easterly one, track 8, there were about...

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