McGraw v. Friend & Terry Lumber Co.

Citations

• 120 Cal. 574
• 52 P. 1004
• 1898 Cal. LEXIS 812

Syllabus

<p>Negligence—Reasonable Case.—The general rule is, that to authorize a recovery for damages occasioned by the negligence of another, the plaintiff must have exercised that reasonable degree of care to avoid the injury which an ordinarily prudent person would have exercised under like circumstances.</p> <p>Id.—Dangerous Sidewalk—Lack of Attention.—A pedestrian, who voluntarily elects to walk during a dark night, along a sidewalk which is in process of repair and in a dangerous condition, which condition •was well known to him from repeated use made of it in the daytime, when he had a perfectly safe passageway by the street or by the opposite sidewalk, is guilty of contributory negligence in not avoiding the known danger, and if .he is injured by reason of its dangerous condition, cannot recover from the owner of the adjoining lot; and the fact that at the moment of the injury his attention was distracted by an expiring street light is immaterial.</p> <p>Id.—Negligence—When Question of Law.—While the question of negligence is nearly always a matter for the jury, and the burden of proving contributory negligence is on the defendant, yet when it appears from the undisputed facts that the plaintiff has not exercised such care as men of prudence usually exercise in positions of like exposure and danger, the question is one of law for the court. Id.—Eeboneous Refusal of Nonsuit.—In an action to recover damages for an alleged negligence, the erroneous refusal of a motion for a non-suit is not cured by the subsequent verdict of the jury in favor of the plaintiff.</p>