Everett v. Los Angeles Consolidated Electric Railway Co.

Citations

• 115 Cal. 105
• 43 P. 207
• 1896 Cal. LEXIS 981
• 34 L.R.A. 350

Syllabus

<p>Negligence — Action for Death ■— Collision of Electric Car with Bicycle—Contributory Negligence of Deceased—Careless Riding upon Railroad Track—Nonsuit.—Where a mature person of good eyesight and unimpaired hearing, who was an experienced rider of the bicycle, rode along the track of a double line electric railway, and crossed from one track to the other to avoid collision with an approaching train, and then rode on the other track in advance of a heavily loaded train, which was rapidly overtaking him, without turning his head, or looking to see the approaching train, and without hearing the ringing of the gong and other warning, given him from the train to get off the track, and without attempting to turn or increase the speed of his bicycle, whereupon the motorman, when within about ten or twenty feet of him, reversed the brakes, and endeavored to stop the train, but did not succeed in time to avoid a collision in which the rider of the bicycle was killed, such rider is chargeable with contributory negligence which will preclude a recovery in an action for his death, and it is erroneous for the trial court to refuse to grant a nonsuit in such action.</p> <p>Id. —Failure to Look and Listen, Negligence PerSe—Character of Railway Immaterial.—In walking or riding along a line of railway where ears or trains are passing or likely to pass at short intervals, one while in a position to be endangered by such vehicles must pay attention to his surroundings, and employ his natural faculties, and exert due diligence to avoid such danger; and he must listen and look to ascertain whether danger is threatened by his situation, and a failure so to do constitutes negligence per se, or negligence in law which is not a question for the jury; and there is no distinction in the application of this doctrine between an electric or cable line operated upon the streets of a city and that of an ordinary steam railway operated upon the right of way of the corporation.</p> <p>Id.—Right o