Kenna v. Cent. Pac. R.R. Co.

Citations

• 101 Cal. 26
• 35 P. 332

Syllabus

<p>Negligence—Action for Death—Contributory N egligence—Nonsuit.— A nonsuit is properly granted on account of contributory negligence in an action by an administrator against a railroad company for the alleged negligent killing of a deceased person, where it appeared from the evidence on the part of the plaintiff that the deceased was employed by the company as a plumber, in fitting and connecting pipes alongside the tracks for the purpose of a signal tower, and, while engaged in this work, started to walk along one of the tracks, and walked about fifteen feet after a train came within the range of view; that he did not turn around or look to see if the train was coming; that there was a space of ten feet by the side of the track over which he could have walked instead of walking upon the track, and that he could have got out of the way by taking a single step into this space.</p> <p>Id.—Excuse of Apparent Negligence of Deceased—Burden of Proof.—■ If there were any circumstances which would excuse the apparent negligence of the deceased in walking upon the track without taking any precaution to avoid danger, it was incumbent upon the plaintiff to establish them at the trial.</p> <p>Id.—Duty of Workman in Place of Danger.—One who is working in a place where he is exposed to danger must exercise his faculties for his own protection, and if he fail to do so, he is not entitled to damages for personal injuries received.</p> <p>Id.—Walking Upon Railroad Track.—Walking upon the line of a railroad where trains are at any time liable to pass, without looking to see whether a train is approaching, is negligence per se which will preclude . a recovery for injuries received.</p> <p>Id.—Negligence, When a Question of Law—Nonsuit.—Where the facts in an action for damages for negligence are undisputed, and the plaintiff’s negligence clearly appears therefrom, or when the uncontradicted evidence on the part of the plaintiff is such that the only reasonable construction that can be