49 Cal. 253, 3,904, Flemming v. Western P. R. Co.

Docket Nº:3,904
Citation:49 Cal. 253
Opinion Judge:CROCKETT, Judge
Party Name:JOHN M. FLEMMING v. THE WESTERN PACIFIC RAILROAD COMPANY
Attorney:S. W. Sanderson, for the Appellant. Frs. E. Spencer, for the Respondent.
Judge Panel:JUDGES: Crockett, J. Mr. Justice Rhodes did not express an opinion.
Case Date:October 01, 1874
Court:Supreme Court of California
 
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Page 253

49 Cal. 253

JOHN M. FLEMMING

v.

THE WESTERN PACIFIC RAILROAD COMPANY

No. 3,904

Supreme Court of California

October, 1874

Page 254

Appeal from the District Court, Third Judicial District, County of Santa Clara.

The defendant, after the plaintiff had rested, moved for a nonsuit, because:

First.--The evidence failed to show that the accident happened without any negligence on the part of the plaintiff contributing thereto.

Second.--The evidence showed that the negligence of the plaintiff did contribute to the accident.

The Court said that the question of neglect was a question for the jury, and not for the Court. There was sufficient evidence on that point to go to the jury, and the motion was denied. To which ruling the defendant excepted. The defendant appealed.

COUNSEL

S. W. Sanderson, for the Appellant.

The plaintiff should have been nonsuited, or the verdict set aside upon the ground that it was contrary to the evidence. The ground of the motion was that the collision was the result, in part, at least, of the plaintiff's negligence. If such was the case, it is well settled, in this Court and everywhere else, that he cannot recover. (Richmond v. S. V. R. R. Co. 18 Cal. 351; Gay v. Winter , 34 Id. 153; Needham v. S. F. and S. J. R. R. Co. 37 Id. 409; Kline v. C. P. R. R. Co. 37 Id. 400; Sherman & Redfield on Negligence, Sec. 25; Telfer v. Northern R. Co. 30 N. J. (Law) 188; Moore v. Central Railroad, 4 Zab. 268; Punyon v. Same, 1 Dutcher, 556.)

It is equally well settled that where the facts clearly appear, and the course which common prudence dictated can be clearly discerned from the plaintiff's own showing, the question of his negligence becomes a question of law to be decided by the Court; and, if decided in the affirmative, that a nonsuit must be granted. (Pittsburgh, etc., R. Co. v. McClurg, 56 Penn. St. 294; Glassey v. Hestonville, etc., R. Co. , 57 Id. 172; Biesiegel v. N.Y. Central R. Co. 40 N.Y. 9; Sherman & Redfield on Negligence, Sec. 11, and cases cited.)

It may be safely conceded, for the purposes of this case, that where the testimony on the part of the plaintiff leaves his conduct in doubt, the case should go to the jury, although a contrary doctrine is not without precedent. (Walter v. Herron, 22 Texas, 55.)

Frs. E. Spencer, for the Respondent.

The point...

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