Tobin v. Omnibus Cable Co.

Citations

• 4 Cal. Unrep. 214
• 34 P. 124
• 1893 Cal. LEXIS 1125

Syllabus

<p>Street Railway—Premature Starting of Car.—In an action against a cable-ear company for injuries received in alighting from a ear alleged to have been prematurely started, after- instructing the jury that common carriers of passengers must use such vigilance and foresight as they can, under the circumstances, in view of the character and mode of conveyance adopted, to prevent accidents, it was not improper to instruct that “it was the defendant’s business to know, before starting up the car, whether passengers getting off or on the car were in a position to be injured, and it would be negligence to start the car suddenly, under such circumstances, without exercising every precaution for the safety of those who might be getting off or on.”</p> <p>Negligence.—One is Guilty of Contributory Negligence if he is guilty of want of ordinary care, and the want of extraordinary care merely is no defense.</p> <p>Negligence—Concurring Negligence as Defense.—Negligence on plaintiff’s part, amounting to absence of ordinary care, which, concurrently with the negligence of defendant, proximately contributes to the injury, is a good defense,' whether or not defendant, with ordinary or extraordinary care, could have guarded against it.1</p> <p>Street Bail way—Injury to Passenger Alighting,—In an action against a street-car company for personal injuries, plaintiff claimed, and the evidence tended to prove, that a car was started while she was alighting therefrom, while defendant claimed, and gave evidence to show, that the car was started before plaintiff left her seat, and that she tried to get off while the ear was in motion. Held, that an instruction making the defense of contributory negligence dependent on whether defendant could have guarded against such negligence was rendered harmless by subsequent instructions that the verdict must be for the defendant if the injuries were caused either solely by plaintiff’s negligence, or, jointly and concurrently, by the negligence of pla