Holmes v. South Pacific Coast Railway

Citations

• 97 Cal. 161
• 31 P. 834
• 1893 Cal. LEXIS 503

Syllabus

<p>Negligence —Passenger Killed while Walking upon Railroad Track ■—■ Contributory Negligence — Action for Death — Nonsuit — Failure to Sound Alarm-whistle. — Where a passenger, about to take a train, walked in daylight in dangerous proximity to the railroad track, without looking or listening for the approach of the train for which he was waiting, and finally stepped partly upon-the track, in which position he was struck and killed by the approaching engine, he was guilty of contributory negligence, and in an action by Ms administratrix for his death thereby caused, the plaintiff is properly nonsuited; and the fact that the engineer only rang the bell, and did not sound the alarm-whistle, is immaterial, in view of the negligent conduct of the deceased.</p> <p>Id. —Concurring Negligence of Defendant. —The rule which permits a recovery notwithstanding the previous negligence of the plaintiff or person injured is only properly applied where such - negligence was the remote and not the proximate cause of the injury, and the negligence of the defendant is independent of the preceding negligence of the person injured; and this principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.</p> <p>Id. — Evidence — Custom as to Operation of Double-track Railroads — Knowledge of Deceased. —Where it appears that the defendant had for two years previous to the accident operated its trains upon the left-hand side of its double track, an offer of plaintiff to prove a universal custom for other railroads to operate trains upon the right-hand track is properly excluded as irrelevant. The liability of the defendant cannot be made to depend upon the question whether the deceased did or did not know of the way in which it operated.its road.</p>