55 Cal. 593, 6,384, Jamison v. San Jose &Amp; Santa Clara R. Co.

Docket Nº:6,384
Citation:55 Cal. 593
Opinion Judge:MORRISON, Judge
Party Name:JAMISON et ux. v. THE SAN JOSE & SANTA CLARA RAILROAD COMPANY
Attorney:S. F. Leib, for defendant: J. C. Black, and Lampkin & Thomas, for Respondents.
Judge Panel:JUDGES: Morrison, C. J. Myrick, J., and Sharpstein, J., concurred.
Case Date:July 01, 1880
Court:Supreme Court of California
 
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Page 593

55 Cal. 593

JAMISON et ux.

v.

THE SAN JOSE & SANTA CLARA RAILROAD COMPANY

No. 6,384

Supreme Court of California

July, 1880

Department Two

Appeal from a judgment for the plaintiff in the Twentieth District Court, County of Santa Clara. Belden, J.

COUNSEL

S. F. Leib, for defendant:

Cited Fleming v. W. P. R. R. Co. 49 Cal. 257; Deville v. S. P. R. R. Co. 50 id. 383; R. R. v. James, 5 Otto, 443; Fox v. Glastenbury , 29 Conn. 204; The Ship Anglo-Norman, 4 Saw. C. C. Rep. 188; R. R. Co. v. Houston, 5 Otto, 702; Forsyth v. B. & A. R. R. Co. 103 Mass. 510; Matthews v. St Louis Elevator Co. 59 Mo. 474; Gribble v. Sioux City, 38 Iowa 390.

J. C. Black, and Lampkin & Thomas, for Respondents.

Upon the issues as to negligence the evidence was conflicting, and the verdict should not be disturbed. (Blood et ux. v. Tyngs-borough , 103 Mass. 509.)

JUDGES: Morrison, C. J. Myrick, J., and Sharpstein, J., concurred.

OPINION

MORRISON, Judge

Page 594

This action was brought to recover damages sustained by the plaintiff, Mary E. Jamison, while a passenger on defendant's road, and a trial having been had in the late District Court, of the Twentieth Judicial District, judgment passed in favor of the plaintiffs for the sum of $ 300 damages, from which judgment the appeal in this case was taken.

It appears from the evidence that in the month of September, 1876, the city of San Jose was causing Los Gatos Creek to be widened at a point where it is crossed by defendant's road; that an excavation was made on the east side of the creek, leaving the bridge spanning the creek propped and still standing; that at the time the excavation was twenty feet wide, leaving for that distance a chasm twelve feet deep, between the edge of the east bank and the east edge of the bridge, over which there were no means of passage, except upon the railroad track, which was undermined and had been propped up, and boards laid along the rails, but over which the cars did not and could not pass. As a part of the means used and adopted by the defendant for the transportation of its passengers across the chasm above referred to, defendant laid a line of planks between the rails, extending from end to end across said creek, and filling the space between the rails, but without a railing on either side thereof. There was a log 10x10 inches lying across the east end of the plank-way, which three men could have removed. On the night of September 17th, 1876, while the road was in this condition, the plaintiff, Mrs. Jamison, took passage as a passenger, on defendant's car, in the city of San Jose, at a point about a mile east of the bridge. This was at 9 p. m., and the car arrived at the bridge at 9.10 p. m.

Mrs. Jamison testified as follows: " The car went as far as the creek, and then the driver threw open the door and told us to change cars. I started across the plank-way, which was twenty feet long. It was so dark I could not see where I was

Page 595

stepping. There were no guards along the plank-way, and no lights except in the car I had just vacated, and in the car on the other side of the creek, and one on the other end of the bridge, at the center of the roadway. None of these threw any light on the plank-way, or made it possible to see it. I made one step on the plank-way, and the next I went over and fell to the bottom of the excavation. I fell over because it was so dark. I could not see where I was stepping. I had passed over the plank-way several times before in daylight, and knew just exactly how the track was then, and how it was planked. I had crossed it that evening going into town, before it was dark. I was badly hurt." This statement of plaintiff was corroborated by many witnesses.

Hattabaugh, a witness for plaintiffs, testified that he was following Mrs. Jamison across the plank-way, and feeling his way with his cane, and had he not seen her fall, he thought he might have fallen himself.

There was no pretense that Mrs. Jamison called for a light or guide, and the testimony showed that she did not.

Plaintiffs also proved that the passengers transported upon defendant's cars were in the practice of passing across the plank-way for the purpose of taking the cars at either side of the chasm, and that this fact was well known to defendant and its agents.

The defendant produced witnesses who testified that the road and pathway across the bridge was suitably and sufficiently lighted, so that persons with ordinary care could readily see to cross the same.

The foregoing is substantially the evidence in the case as presented by the bill of exceptions. When the evidence was closed, the defendant, by its attorney, requested the Court to direct the jury to find for the defendant, which direction the Court refused to give, and thereupon defendant excepted. Verdict for plaintiffs.

The only point presented for our consideration on this appeal is, that there was such contributory negligence on the part of Mrs. Jamison as to defeat plaintiff's right to a recovery.

The general doctrine is perfectly familiar...

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