Strong v. Sacramento & Placerville Railroad

Citations

• 61 Cal. 326
• 1882 Cal. LEXIS 606

Syllabus

<p>Contributory Negligence—Railroad.—Action for damages for injuries alleged to have been caused by the negligence of defendant’s servants. The plaintiff was driving his wagon at a slow trot towards the railroad crossing upon a street which was crossed by the defendant’s track; and upon approaching the track his horses were frightened by the passage of the locomotive and ran away, throwing the plaintiff from the wagon and seriously injuring him. It appeared from the evidence of the plaintiff that the street was built up on each side, and lined with piles of lumber in such a manner that a train upon the track could not be seen until the plaintiff approached very near to it; and also that the engine bell was not rung as required by Section 486, Civil Code.</p> <p>Held: The evidence did not show such contributory negligence as to justify a nonsuit, or a reversal'of the order denying a new trial.</p> <p>Id.—Id.—The rule is not that any degree of negligence, however slight, which directly concurs in producing the injury will prevent a recovery; but that, if the negligence of the plaintiff, amounting to the absence of ordinary care, shall contribute proximately in any degree to the injury, the plaintiff shall not recover.</p> <p>Id.—Id.—Case Distinguished.—Had the plaintiff been where the track was ordinarily visible, but some transitory obstacle impeded his vision— as the clouds of dust, in Fleming’s Case (49 Cal. 253)—it might have been his duty to wait until the obstacle was removed. But here plaintiff’s view was cut off by permanent erections; and whether he was properly cautious after he reached a place from which he could see the track was a question of fact as to which the Court can not say the jury found wrongly.</p> <p>Id.—Id.—It was argued that the jury disobeyed the following instruction: “If M. street was obstructed by lumber on the sides thereof at the point where it united with Front street, and plaintiff drove through M. street nearly on to defendant’s rail