Denbeigh v. Oregon-Washington Railroad & Navigation Co.

Citations

• 23 Idaho 663
• 132 P. 112
• 1913 Ida. LEXIS 106

Syllabus

<p>Negligence — Instructions—Applicable to the Pacts op the Case— Verdict — Not Disturbed — Damages—Exces sive.</p> <p>1. In an action for damages based upon negligence, it is irrelevant to prove that the plaintiff or defendant has on similar occasions been careful or negligent, or that either party has the reputation of being careful or negligent.</p> <p>2. “In determining the question of negligence and contributory negligence in this case, the jury should take into consideration the place at which the accident occurred, the nature of the surrounding country, the condition of the roadbed, the manner in which the train was being propelled, the character of the use of that railroad track, the probability of pedestrians being on the track at that time and place, if any, and from all of the facts and circumstances determine whether or not the servants of the defendant in charge of the train exercised ordinary care and prudence in the management and operation of the train at the time and place mentioned, and whether the plaintiff was guilty of contributory negligence under the instructions covering the same.” The foregoing instruction is approved as stating the law applicable to the facts of this ease, and did not prejudice the jury.</p> <p>3. “Notwithstanding the fact that the plaintiff has been guilty of some negligence in exposing his person to an injury at the hand of the defendant, yet if the defendant discovered the exposed situation of the plaintiff in time by the exercise of ordinary or reasonable care after so discovering it to have avoided injuring him and nevertheless failed to do so, the contributory negligence of the plaintiff does not bar a recovery of damages from the defendant. Where a person negligently walks upon a railroad track, if the- engineer after noticing his exposed situation fails to give the proper signals or otherwise acts wilfully and recklessly, in consequence of which the person is killed or injured, the company shall be liable in damages