Martin v. California Central Railway Co.

Citations

• 94 Cal. 326
• 29 P. 645
• 1892 Cal. LEXIS 684

Syllabus

<p>Negligence — Defective Cab Couplings — Death of Brakeman — Knowledge of Danger — Province of Jury — Instruction.—In an action against a railroad company for damages for the death of an employee who was injured while attempting to couple cars, on the ground that the railroad company did not use ordinary care in the selection of the couplings, by reason of which the deceased was killed, an instruction to the jury, to the effect that the question of negligence was for them to decide under all the evidence in the case, even if it appeared that the deceased knew the character, kind, and dangerous nature of the couplings, and that such knowledge is a circumstance to be considered by the jury, but is not necessarily decisive, is correct.</p> <p>Id.—Erroneous Instruction — Forgetfulness of Continuous Danger — Contributory Negligence. — An instruction to the effect that notwithstanding the deceased was engaged in a dangerous business, renuirjng constant and watchful care upon his part to save himself from inj ury, still, if he did not always bear these things in mind and act upon them, and was thereby injured, he could recover, is erroneous, where there is no evidence showing sudden danger or emergency, and the only danger was the ever-present one incident to the act of coupling the cars. An injury received under such circumstances would be the direct result of contributory negligence, which would defeat a recovery.</p> <p>Id.—Coupling in General Use — Evidence oe Ordinary Care — Instructions. — It is proper to refuse a requested instruction, that if the character of coupling used by the defendant was in general use among railroad companies it was not negligence upon the part of the defendant to use it. Such general use was evidence tending to show ordinary care in the selection of the coupling, but not conclusive.</p>