Shea v. Potrero & Bay View Railroad

How Street Railroad Cars should be Rue.—While a street railroad company has a right to run its cars on a public street, yet the public have also a right to travel on the street, and the railroad company must exercise such care and precaution for the purpose of avoiding accidents and endangering property or person, as a reasonable prudence would suggest. Right or Street Railroad ok Street.—A street railroad company has only an equal right with the traveling public to the use of the street where its track is laid, with a few exceptions, such as, that the cars run on a track, and when a vehicle meets a car it must give way. Rights or Persoks to Walk ok Street Railroads.—A person is entitled to walk on a street railroad track in a public street, using reasonable care and prudence to avoid injuries; but he is not required to abandon the track in order to avoid possible injuries which may result from the carelessness of the company, and if he is injured by the carelessness of the company while walking on the track, the fact that he might have walked by the side of the track is not contributory negligence on his part. Exceptions to Instructions Given to a Jury.—When a party procures the Court to give to the jury an instruction which contains legal propositions, it is sufficient for the opposite party to except generally to the instruction without specifying what part of it is objectionable, hut an exception to the charge given by the Court of its own motion, must specify the proposition which is deemed objectionable. Kule of Damages in Action for Injury to Person.—In an action for damages caused by injury to the person, the jury, in estimating damages, cannot take into consideration the fact that the plaintiff is a man who has to depend on his manual labor for a living. The damages in such actions are not dependent on the wealth or poverty of the plaintiff.

Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco. The defendant was a corporation, and owned a railroad known as the Potrero and Bay View' Bailroad, which for a considerable distance passed along Kentucky street. It was excavating a deep cut for its track in Kentucky street. The grade had an ascent leading along the street into this cut, and when the cars were loaded with dirt they were propelled by their own weight down this grade, along the street to where the dirt was dumped. The plaintiff", about ten o’clock at night," on the 10th of April, 1869, was- walking along Kentucky street, on the track of the defendant’s railroad, when he was struck by a car of the defendant, loaded with dirt, and sustained severe injuries on his person. The plaintiff was on his way to his residence, and Kentucky street ■ was his usual and direct route of travel home. The testimony tended to show that the earth which was taken from the cut was of a greasy character, and that it had fallen on the track, and that the noise usually made by the cars was thereby deadened. That there was no moon on the night of the accident, and that there were no lights on the defendant’s car or street, and that no bell was rung on the car, and that the plaintiff did not know of the approach of the car until he was struck. There was another track by the side of the one on which the plaintiff was walking, and he knew that the cars were running and carrying dirt on the track where he walked. For the purpose of giving to the profession the general theory upon which the Court below tried the case, the instructions of the Court given to the jury are inserted below: The Court, at the request of the plaintiff, gave the following instructions: “1. The answer admits the corporate capacity of the defendant; that it owned and was using the car that inflicted the injury on plaintiff at the time of such injury; that this car was used in removing the dirt from the Potrero cut, and was propelled by means of the descending grade of the street upon which they moved, and the weight of the load of dirt on the car; that the occurrence out of which this action grew took place about a quarter past ten o’clock, on the night of April 10th, 1869; that the car, propelled in the manner and at the time stated, upon and along Kentucky street, a public street and thoroughfare of this city, had no signal light or bell, or other means of warning travelers on the street of its approach, except that it is claimed that there was a competent and skillful brakeman in charge of the loaded car, who warned the public of its approach by whistling and hallooing; and it is further admitted by the pleadings that while the plaintiff was walking upon Kentucky street the descending car struck and threw him down. “ 2. In regard to the relative rights of the plaintiff and defendant in Kentucky street, which was an open public street and thoroughfare of this city at the time of the alleged injury, the Court charge you that the plaintiff and every other citizen were, in the exercise of ordinary care, entitled equally with the defendant to go upon and cross over the street at any point thereon they pleased. Kor has the defendant any rights superior to those of the plaintiff in that portion of the public street included between the tracks, except when its cars are actually thereon or moving over the same. “ 3. If, at the time the plaintiff attempted to cross Kentucky street, the car of the defendant was not then on that portion of the street over which he attempted to cross, and was not threateningly near to, or threateningly approaching the same; or if, in fact, the car of the defendant was then approaching, but was not visible, or there was then nothing to warn the plaintiff of its approach, and he was then not aware of its approach, he might lawfully walk upon any part of said street, or across any part thereof; and if, in the exercise of ordinary care as a prudent person in so doing, he was injured through the negligence of the defendant, in running its car on the street without a bell or light, or other proper means of warning, the defendant is liable to the plaintiff for the damages sustained. “4. If the traveler on the public street is warned of the approach of cars by the customary signals, or if by other means he is made aware of their approach, he is bound not to expose himself to injury; but if he advances or crosses on the open public street, with no cars in view, and no indications of their approach, he is at liberty to pursue his way with ordinary care, and cross or walk along the public street at any point thereon that he may deem proper. He is in no wise obliged to refrain from the use of the public street from the mere fact that a line of cars run upon and over it. “ 5. On the other hand, while the defendant has the equal right to run its cars upon and along the public street, in running its cars upon an open' public street of the city, where the public has an equal right to travel, and where it is presumed they will travel, the defendant must exercise such care and precaution for the purpose of avoiding accidents, endangering property or person, as a reasonable prudence would suggest, and which it was in their power to employ. “ 6. If the use of a bell or light, or both, on their dirt car, were measures that reasonable prudence and foresight dictated, the defendant was bound to use them; and if by such use accidents would probably be' avoided, the omission to use them, if proved to the satisfaction of the jury, makes out a prima facie case of negligence as against defendant. “ 7. The measure of precaution and care required by law of persons in the exercise of their rights, must always be in proportion to the exigencies of the occasion, and also in view of the likelihood of endangering or affecting third parties by the exercise of such right, and this is especially so where the life or limb of a human being is concerned. “ 8. The negligence on the part of the plaintiff that will preclude or defeat a recovery herein must be such as contributed to the alleged injury. The mere fact that he happened to be on the line of the track when struck is not of itself conclusive evidence of negligence, for he was entitled to go there, unless the car of the defendant was at the time threateningly near to the part of the railroad track where he then was, and he had by the exercise of ordinary prudence, the means of knowing of the immediate approach of such car. Nor is it any conclusive evidence of negligence on the part of plaintiff that he attempted to cross Kentucky street, knowing that the dirt cars of the defendant were running thereon, for if such knowledge were to amount to conclusive proof of negligence, it would practically give the defendants the exclusive right to the use of said Kentucky street at all times when their cars were running thereon. “ 9. In cases like this there is no fixed rule of damages. Yfit the assessment of damages must be reasonable, and a just compensation for the value of time lost, if any, the expense, if any, paid by plaintiff, attending his cure, for mental and physical suffering, if any, as well as compensation for any permanent reduction of powers, if any, to earn a support for himself. [The italicised words added by Judge Sawyer.] “ 10. The jury, if satisfied from the evidence of the right of the plaintiff to recover, are bound to award such damages as will fully compensate the plaintiff for the injuries and losses, if any, he has sustained in consequence of the alleged misconduct of the defendant. “11. In estimating damages, the jury may take into consideration whatever of bodily pain and suffering the plaintiff has endured; also, such loss of time as he has sustained, and the fact, if such be the fact, that by reason of the injuries he has received he may not be as well able to labor and earn a living hereafter as he was before the disaster in question; also, the extent to which his injuries, iff any, may permanently disable him, together with the further fact, if such fact is proven to your satisfaction, that he is a man who has to depend upon his manual labor for a living.” To the giving of each one of which the defendant then and there excepted. The defendant requested the Court to give the following instructions, which the Court refused to give; to which refusal the defendant, by its counsel, excepted. Iiumbers refused as follows: 9, 10, and letters b, c, d, e, g, h, and a: “ 9. If the jury believe, from the evidence, that there was, on the west side of Kentucky street, ample way for plaintiff to have walked along in safety on the night on which the injury sued for is alleged to have been received; that plaintiff knew of such way, and failed to use the same—then such failure on his part to use such way was negligence, in consequence of which he is not entitled to your verdict. “10. If the jury believe, from the evidence, that there was, on the west side of Kentucky street, an ample roadway, in which plaintiff might have walked along in the direction which he desired to take, on the night on which the injury sued for is alleged to have been received, and that plaintiff knew of such way, and failed to use the same; that he also knew, or had reason to know, that he might meet with danger on that portion of the said street in which he was walking, and still continued to use the dangerous way, instead of the safe one, then the plaintiff was guilty of negligence, and is not entitled to your verdict. ■ “ b. There being no evidence proving negligence on the part of the defendant, your verdict must be rendered for said defendant. “ c. The evidence of negligence on the part of the defendant in this cause being equally consistent with either view— that is, with the existence of negligence or non-existence of negligence on the part of the defendant, your verdict must be for said defendant. “ cl. It was the duty of the plaintiff, attempting to cross Kentucky street at the time he did, to look out for the descending car; and if he failed to do so he cannot recover, and your verdict must be for the defendant. “ The Judge, at the time of refusing said instruction d, said: ‘I refuse this instruction (instruction d), because the law thereof is given in another instruction, and because it assumes a fact as to the crossing.’ “ e. If there was a sufficient space on either the west or east side of the track for plaintiff to go along safely, he was guilty of negligence in walking on the track where he did— and in consequence of so walking on the track, he cannot recover. “ g. If the plaintiff was traveling latterly upon the track of the railroad upon which the descending car was approaching, at .the time he received the injury, he was guilty of negligence, and cannot recover. “ h. If the plaintiff used the railroad track upon which the descending car was approaching, laterally, that is, walking along it, it was his duty to exercise peculiar care, and to take every precaution which the highest reasonable caution could suggest; and if he failed' to do those things, he was guilty of negligence, and cannot recover. “a. The evidence of negligence on the part of plaintiff and defendant being balanced, your verdict must be for the defendant.” The jury found a verdict in favor of the plaintiff for eight thousand seven hundred and fifty dollars, and judgment was rendered for that amount. The defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.