Warren v. Southern California Railway Co.

Citations

• 6 Cal. Unrep. 835
• 67 P. 1
• 1901 Cal. LEXIS 1249

Syllabus

<p>Railroads.—Plaintiff Set Out an Ordinance Limiting the Speed of railway trains, and then alleged that a train running at a great rate of speed by reason of said negligence struck plaintiff. A special demurrer to the complaint as ambiguous in not stating whether the negligence charged was a violation of the ordinance was overruled. Held, that, if error, it was not prejudicial, as the general allegation of negligence supported the cause of action, and would permit evidence of a violation of the ordinance.</p> <p>Appeal.—The Rule That Error, to Work a Reversal, must be prejudicial, applies to error in overruling demurrers to complaints on ground of ambiguity.</p> <p>Railroad Crossing—Contributory Negligence.—Plaintiff was in a Wagon, which another was driving. When within two hundred or three hundred feet of the crossing, the driver took the whip in her hand and slowed the horse to a walk, looking to the east, in which direction the view was unobstructed for one thousand feet. Thereafter the view in that direction became obstructed until a point twenty-five feet distant from the track, and at this point they looked, to the west, and then, turning to the east, saw a train approaching, by which time the horse was but a few feet from the track, and the driver attempted to hurry across, but the wagon was struck, and plaintiff injured. Held, that the question of contributory negligence was for the jury.</p> <p>Railroad Crossing—Contributory Negligence.—The Horse Being Afraid of the ears, and the question whether to attempt to cross or to turn down the embankment being one to be decided on the instant, the attempt to cross, even though a mistake, did not establish con-' tributory negligence.1</p> <p>Railroad Crossing.—A General Verdict for Plaintiff Being Supported by evidence, a finding on a special issue that the horse was not under control immediately prior to the accident, though without support in the evidence, was not in substantial conflict with the general verdict