Mahoney v. San Francisco & San Mateo Railway Co.

Citations

• 110 Cal. 471
• 42 P. 968
• 1895 Cal. LEXIS 1083

Syllabus

<p>Negligence—Street Railway— Collision—Rights of Travelers in Advance of Car—Presumption.—A street railway company has no exclusive use of any portion of the highway, its right being to a use in common with the public, and peculiar only so far as its inability to move from its track makes it so; and travelers upon the highway going in the same direction in advance of a street-car have a right to presume that the street railway company will use its franchise in view of the rights of others to avoid a collision.</p> <p>Id.—Contributory Negligence—Driving Near Track at Night—Duty of Electric Railway.—It is not negligence per se to travel along or near to the track in the same direction in which an electric car is going; but it is the duty of the electric railway to maintain a sufficient light at night upon the car to see an obstruction in time to stop the car, or to move with less velocity, so as to avoid a collision with a traveler driving upon or near the track in advance of the car.</p> <p>Id.—Action for Death—Evidence—Means of Children.—In an action for death, brought by the wife and minor children of the deceased, it is erroneous to allow the plaintiffs to prove that the children have no means of their own.</p> <p>Id.—Irregularity — Allusion of Judge to Poverty of Plaintiffs — Improper Statements to Jury—New Trial.—Where it appears that after the jury had been out for several hours without agreement, they were brought into court with a statement of failure to agree, and that the judge, after finding out that the jury stood eight to three, called attention to the fact that, if the jury could not agree, all the expenses would fall upon the plaintiff, who was not well off, and informed them that the plaintiff required nine men, and that if it was possible for one of the three to arrive at a conclusion, anything the judge could do he would cheerfully do, and stated that he would send them out once more, and give them a chance to try to agree, expressing the opinion t