Herbert v. Southern Pacific Co.

Citations

• 121 Cal. 227
• 53 P. 651
• 1898 Cal. LEXIS 881

Syllabus

<p>Negligence—Questions of Fact and Law.—Negligence is a question of fact for the jury, even when there is no conflict in the evidence, if dif-r ferent conclusions upon the subject can be rationally drawn from the evidence; but if only one conclusion can reasonably be reached from the evidence, it is a question of law for the court.</p> <p>Id.—Contributory Negligence—Crossing Track in Front of Approaching Train.—The plaintiff is guilty of contributory negligence as matter of law, when injured while crossing a railroad track with a vehicle in front of an approaching train, which he knew was near, and which might have passed him in safety had he stopped and waited a few seconds, before making the attempt to cross, notwithstanding the negligence of the railroad company in failing to ring the bell or sound the whistle, or to maintain a lookout by the fireman, at the crossing.</p> <p>Ed.—Failure to Discover Peril of Plaintiff.—The defendant cannot be charged with damages for the resulting injury, notwithstanding the contributory negligence of the plaintiff, unless the peril of the plaintiff was actually known in time, so that the injury could have been avoided by the exercise of ordinary care, and is not liable therefor merely because he ought to have known, and would have discovered, the peril of the plaintiff but for remissness on his part.</p>