Van Praag v. Gale

Citations

• 107 Cal. 438
• 40 P. 555
• 1895 Cal. LEXIS 772

Syllabus

<p>Negligence—-Leaving Trapdoor Open — Contributory Negligence — Question of Fact—Nonsuit.—Where the plaintiff was injured by falling through an opening maintained by defendant in the sidewalk, which had no railing or protection around it, and which was occasioned by the defendant leaving a trapdoor open flat upon the sidewalk, which the plaintiff had crossed a few moments before when closed, and bad not seen opened, and did not observe that it was open by reason of being absorbed in business while attempting to repass, although he was familiar with the defendant’s habit of opening the trapdoor daily at intervals, and had seen it opened daily for years, and had spoken to defendant of the opening as being dangerous, the question of the plaintiff's contributory negligence is-one of fact for the jury, and a motion for a non-suit on the ground that the plaintiff’s negligence contributes to the injury is properly overruled.</p> <p>Id.—Doubtful Inference—Question of Fact.—Where the surrounding circumstances leave the inference of negligence open to doubt, debate, or difference of opinion, and it appears that the object of danger was only occasionally presented, and was not usually existent as a menace, it is proper to submit the question of plaintiff’s negligence to a jury.</p> <p>Id.—Mixed Question of Law and Fact.—As a general proposition cases of negligence (to which those of contributory negligence form no exception) present a mixed question of law and fact, in which it devolves upon the court to say, as matter of law, what is or amounts to negligence, and upon the jury to say, as matter of fact, whether or not, in the particular case, the facts in proof warrant the imputation of negligence.</p> <p>Id.—Question of Law—Exception.—The court should decide the question of negligence as a matter of law when the facts are clearly settled, and the course which common prudence dictates can be readily discerned; but that contributory negligence is matter of law is the exceptio