Davey v. Southern Pacific Co.

Citations

• 116 Cal. 325
• 48 P. 117

Syllabus

<p>Negligence — Excavation at Railway Crossing — Pleading — Public Street—Evidence of Licensed Footpath—Variance.—In an action against a railway company for negligence, where the complaint charged that the negligence consisted in causing a drain to he opened and exea-' vated beneath the track at the crossing of a public street, and thereafter negligently leaving it open and unprotected, and in a dangerous condition for the whole distance across the street, and that plaintiff was injured by ignorantly falling into such excavation at night-time, evidence offered to show an injury resulting from such excavation made upon the private property of the defendant, but at a point where plaintiff and others were privileged to pass over its track by a footpath crossing its right of way, presents a material variance between the pleadings and proof, which justifies an exclusion of the offered evidence.</p> <p>Id.—Exclusion of Evidence—Grounds of Objection — Review upon Appeal—Reasons for Ruling Immaterial.—The fact that the excluded evidence was not objected to in the court below, upon the ground of variance between the pleading and the proof, hut only on the general grounds that the evidence was irrelevant, immaterial, and incompetent, does not constitute sufficient reason for reversing the ruling of the court, which will be sustained upon appeal as correct in law, regardless of the reasons or grounds assigned for the ruling in the court below, and regardless of what objections were made to the evidence in that court.</p> <p>Id.—Objections to Evidence—Reasons for Exclusion—Exclusion Distinguished from Admission—Intendments in Favor of Judgment. An objection to evidence is a mere reason offered for its exclusion, and if the court decides correctly in rejecting the testimony for any other reason which might have been urged, its ruling must stand upon appeal, and in such case it is not important whether the best objection was made, or whether any objection was made; but where test