Clark v. Bennett

Citations

• 123 Cal. 275
• 55 P. 908
• 1899 Cal. LEXIS 1059

Syllabus

<p>Negligence—Collision oe Wagon with Street-car—Contributory Negligence oe Traveler—Question for Jury.—In an action for injuries caused by the alleged negligence of a street railway company in causing a collision with plaintiff’s wagon while crossing the track, if the facts do not plainly and inevitably point to the contributory negligence of the plaintiff, and do not show that the jury were hound to find that his acts after attempting the crossing constituted contributory negligence, the question as to his contributory negligence is for the jury; and it cannot be said, as matter of law, that he was guilty of contributory negligence merely because he attempted to cross the street railway track with his wagon when the car was approaching.</p> <p>Id.—Care Required of Traveler Crossing Street Railway.—A traveler crossing a street railway track when a car is approaching cannot be held to exercise the very highest prudence and judgment, and is not required to exercise the same degree of care that is required in crossing a track upon which a heavy steam railway train is traveling at a high rate of speed. It is sufficient if, in crossing the street railway, he exercises that degree of care and prudence and good sense, which, in such a situation are exercised by men who possess those qualities in an ordinary or average degree.</p> <p>Id.—Negligence oe Street Railway Company — Improper Rate of 'Travel—Power to Prevent Collision-—Conflicting Evidence.— Evidence tending to show that the street railway car at the time of the collision was traveling faster than the prescribed limit, and that those in charge of the ear, after they discovered the position of plaintiff’s wagon in crossing the track, could, with ordinary diligence, have prevented the collision by stopping the car before it reached the crossing is sufficient to warrant the jury in. finding that the employees of the car were guilty of negligence, notwithstanding conflicting evidence to the contrary.</p> <p>Id.—Relati