98 Cal. 309, 14982, Hager v. Southern Pacific Co.

Docket Nº:14982
Citation:98 Cal. 309, 33 P. 119
Opinion Judge:GAROUTTE, Judge
Party Name:LEWIS N. HAGER, Appellant, v. SOUTHERN, PACIFIC COMPANY, Respondent
Attorney:D. L. Smoot, for Appellant. A. A. Moore, and James C. Martin, for Respondent.
Judge Panel:JUDGES: Garoutte, J. Harrison, J., and Paterson, J., concurred.
Case Date:May 18, 1893
Court:Supreme Court of California
 
FREE EXCERPT

Page 309

98 Cal. 309

33 P. 119

LEWIS N. HAGER, Appellant,

v.

SOUTHERN, PACIFIC COMPANY, Respondent

No. 14982

Supreme Court of California

May 18, 1893

Department One

Hearing In Bank Denied.

Appeal from a judgment of the Superior Court of Alameda County.

COUNSEL:

D. L. Smoot, for Appellant.

A. A. Moore, and James C. Martin, for Respondent.

JUDGES: Garoutte, J. Harrison, J., and Paterson, J., concurred.

OPINION

GAROUTTE, Judge

This is an action to recover damages for injuries to property (horses and harness) resulting from a collision with a train of cars at a railroad crossing in the city of Oakland. A nonsuit was ordered by the trial court and the plaintiff has appealed.

The accident occurred in the settled portion of the city. The train was going at the rate of thirty or thirty-five miles an

Page 310

hour, and the engineer was neither ringing the bell nor blowing the whistle, as required by the statute. The team injured consisted of six horses attached to a band wagon containing sixteen men. The train was a regular train and known to be due at that point by the driver of the horses at about the time of the injury. The view of the track towards the point from which the train was approaching was obstructed until the driver arrived within about forty feet of the crossing, when he would be able to see an approaching train for a distance of two hundred and fifty yards. The bill of exceptions contains further recitals of the evidence as follows: "The driver approached Short Street crossing at a jog trot, and without stopping or checking the speed of the team, and before the crossing was reached by the train one or two of the passengers jumped from the wagon, while it was in motion, because nervous about riding over railroad tracks. The driver of the team did not check the speed of his team and listen for approaching trains before driving upon the crossing, although he knew the train was due about that time, and although he knew that by reason of the intervening houses he could not see the approaching train until his team would be within a few feet of the crossing. Yet he drove on at the jog trot at which he had been previously driving, without stopping, or checking his speed, or lessening the noise of his team, or adopting any precaution, or making any effort to listen for the approaching train while his...

To continue reading

FREE SIGN UP