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

Docket Nº:3,904
Citation:49 Cal. 253
Opinion Judge:CROCKETT, Judge
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

Page 253

49 Cal. 253




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.


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 made by appellant is that" the collision was the result in part of plaintiff's negligence," and that in consequence a nonsuit should have been granted. The answer is that the jury have decided otherwise, and the Court will not interfere.

" Ordinarily in cases of this description, the question whether the party injured was free from culpable negligence is one of fact to be determined by the jury." (Ernst v. Hudson R. R. R. Co. 35 N.Y. 10.)

" Particularly when it depends upon conflicting evidence or on inferences to be deduced from a variety of circumstances, in regard to which there is room for fair difference of opinion between intelligent and upright men." (Id.)

JUDGES: Crockett, J. Mr. Justice Rhodes did not express an opinion.



Page 255

The action is for damages alleged to have been occasioned to the plaintiff's wagon and team through the negligence of the defendants' servants and agents. While crossing the defendants' railroad track, at a regular crossing, the wagon and team were struck by the engine of an approaching train, and three of the horses were killed and the wagon damaged. There was no contradiction in the evidence in chief as to certain prominent facts in the case. It was established by evidence in chief of this character: 1st. That immediately preceding the collision the plaintiff was driving his team of four horses, attached to the wagon, along the county road, which, for the distance of a mile, at that point, runs nearly parallel to the railroad track, and at no place within that space is distant from it...

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