Durgin v. Neal

10 Citing cases

  1. Norton v. Ransome-Crummey Co.

    173 Cal. 343 (Cal. 1916)   Cited 3 times

    In my opinion they are contrary to our own decisions and against the principles of justice. ( Stanford v. San Francisco, 111 Cal. 198, 202, [43 P. 605]; Durgin v. Neal, 82 Cal. 595, [23 P. 133]; Parker v. Larsen, 86 Cal. 236, [21 Am. St. Rep. 30, 24 P. 989]; 3 Farnham on Waters, p. 2625, sec. 895; Paolini v. Fresno Canal Co., 9 Cal.App. 1, [ 97 P. 1130]; Crommelin v. Coxe, 30 Ala. 318, [68 Am. Dec. 120]; Shields v. Orr etc. Co., 23 Nev. 349, [47 P. 194].)

  2. Durante v. City of Oakland

    19 Cal.App.2d 543 (Cal. Ct. App. 1937)   Cited 4 times
    In Durante v. City of Oakland, 19 Cal.App.2d 543, 65 P.2d 1326, the city used defective sewer pipes, resulting in flooding plaintiff's property.

    It was held that no negligence on the part of the defendant was shown, there being no evidence of the maintenance of a large body of water exerting pressure against the wall. But, as the rule is declared in the following cases, where municipalities or others construct sewers or drains in such a manner that the surface water of a large territory is gathered into a body and precipitated upon private premises, to the injury of the owner, such persons, other things being equal, are liable: Stanford v. San Francisco, 111 Cal. 198 [ 43 P. 605]; Shaw v. Sebastopol, 159 Cal. 623 [ 115 P. 213]; Durgin v. Neal, 82 Cal. 595 [ 23 P. 133]; San Gabriel V.C. Club v. Los Angeles, 182 Cal. 392 [ 188 P. 554, 9 A.L.R. 1200]. The evidence in the case at bar was sufficient to bring it within the rule stated.

  3. Lowe v. City of San Diego

    8 Cal.App.2d 440 (Cal. Ct. App. 1935)   Cited 4 times

    ( James v. Frazee, 209 Cal. 456 [ 288 P. 784]; Marr v. Whistler, 49 Cal.App. 364 [ 193 P. 600].) The allegation as to the manner in which said plaintiff was driving her automobile was immaterial ( Durgin v. Neal, 82 Cal. 595 [23 P. 133]), and did not change the burden of proof. [4] The defendant interposed a plea of contributory negligence in its answer. This plea was defective in stating a conclusion rather than the facts by reason of which it was claimed that the driver was guilty of contributory negligence.

  4. Silveira v. Iverson

    125 Cal. 266 (Cal. 1899)   Cited 20 times

    J. Castlehun, for Respondent.          The complaint states facts showing the duty of the defendants, and the breach of that duty, and need not expressly aver negligence. (Dyer v. Pacific R. R ., 34 Mo. 127; Burdick v. Worrall, 4 Barb. 596; Durgin v. Neal , 82 Cal. 597; Congreve v. Morgan, 4 Duer. 439; Buffalo v. Holloway , 7 N.Y. 493; 57 Am. Dec. 550.) There being nothing in the record to show jurisdiction of the person of Omundsen, the judgment as to him was a nullity, and was properly stricken out as such.

  5. Austin v. Pulschen

    112 Cal. 528 (Cal. 1896)   Cited 1 times

    (Code Civ. Proc., sec. 45; Hegard v. California Ins. Co ., 72 Cal. 540; Adams v. Dohrmann , 63 Cal. 417; Grangers' Bank v. San Francisco , 101 Cal. 199; Durgin v. Neal , 82 Cal. 599.)          J.

  6. Sloane v. Southern C. R. Co.

    111 Cal. 668 (Cal. 1896)   Cited 82 times
    In Sloane, a passenger who had purchased a railroad ticket to San Diego and had been wrongfully ejected from the train before her destination sued the defendant railroad for damages in tort.

    Rep. 419; Frederick v. Marquette etc. R. R. Co ., 37 Mich. 342; 26 Am. Rep. 531; Cheney v. Baltimore etc. R. R. Co ., 11 Met. 121; 45 Am. Dec. 190; Jerome v. Smith , 48 Vt. 230; 21 Am. Rep. 125; Mosher v. St. Louis etc. R. R. Co ., 127 U.S. 396; Mahony v. Detroit etc. Ry. Co ., 93 Mich. 612; 32 Am. St. Rep. 528; Peabody v. Oregon etc. Co ., 21 Or. 121; Breen v. Texas etc. R. R. Co ., 50 Tex. 43; MacKay v. Ohio River Ry. Co ., 34 W.Va. 65; 26 Am. St. Rep. 913; Chicago etc. R. R. Co. v. Griffin , 68 Ill. 504; R. & N.W. Ry. Co. v. Bannerman , 15 Ill.App. 100; Pouilin v. Canadian P. Ry. Co ., 52 F. 197; Bradshaw v. South Boston R. R. Co ., 135 Mass. 407; 46 Am. Rep. 481; Hibbard v. New York etc. R. R. Co ., 15 N.Y. 455, 470; Western Ry. Co. v. Mutch , 97 Ala. 194; 38 Am. St. Rep. 179; 16 Am. & Eng. Ency. of Law, 428, 429, 431, 437; Shearman and Redfield on Negligence, sec. 26; Durgin v. Neal , 82 Cal. 595; Fairbanks v. Williams , 58 Cal. 241, 242; 2 Greenleaf on Evidence, secs. 256, 268; Anderson v. Taylor , 56 Cal. 131; 38 Am. Rep. 52; Chidester v. Consolidated Ditch Co ., 53 Cal. 56, 57; Johnson v. Wells, Fargo & Co ., 6 Nev. 224; 3 Am. Rep. 245; Scheffer v. Railroad Co ., 105 U.S. 249; Haile v. Texas etc. Ry. Co ., 60 F. 557; Hall v. Memphis etc. R. R. Co ., 15 F. 57; Morse v. Duncan , 14 F. 396; Salina v. Trosper, 27 Kan. 544; St. Louis etc. Ry. Co. v. Farr , 56 F. 994.) As Mrs. Sloane's walk to Colton was unnecessary, the court erred in directing the jury to consider any suffering resulting therefrom.

  7. Taylor v. Hearst

    107 Cal. 262 (Cal. 1895)   Cited 19 times
    In Taylor v. Hearst the libelous article charged a fraud upon the public in connection with furnishing basalt blocks to the city, and accused J.W.

    The mere negligence of the publisher would not, in the absence of malice, entitle the plaintiff to exemplary damages. (Civ. Code, sec. 3333; Durgin v. Neal , 82 Cal. 595.) There was no error in the court stating that pleading justification was privileged.

  8. Lamb v. Harbaugh

    105 Cal. 680 (Cal. 1895)   Cited 30 times
    In Lamb v. Harbaugh, 105 Cal. 691, [39 P. 56], and Williams v. Casebeer, 126 Cal. 82, [82 P. 376], the court decided that the wife could not sue alone for such injuries.

    (Smith v. Wunderlich , 70 Ill. 437; Becker v. Dupree , 75 Ill. 167, 170; Nightingale v. Scannell , 18 Cal. 315.) Also in receiving and retaining the testimony of plaintiff relating to how long she remained at her house after the night of the alleged trespass, and to her leaving her home thereafter and taking up her residence with her daughter, as this was not a "detriment proximately caused" by anything that occurred on the night of the alleged trespass. (Civ. Code, sec. 3333; Durgin v. Neal , 82 Cal. 595; Karr v. Parks , 44 Cal. 46.) It was her duty to refrain from any unnecessary act which might enhance her damage. (1 Sutherland on Damages, 1st ed., 150, 154.) Besides, there is no evidence that by such removal she lost the use of her property; or that such use, even if lost, was of the slightest value.

  9. Armstrong v. Luco

    102 Cal. 272 (Cal. 1894)   Cited 6 times

             As it does not appear, from the evidence of plaintiff, that the water flowing from defendant's lot was the proximate cause of the injury the nonsuit should have been granted. (Taylor v. Baldwin , 78 Cal. 517; Durgin v. Neal , 82 Cal. 595; Civ. Code, sec. 3333; Milwaukee C. R. Co. v. Hunter , 11 Wis. 160; 78 Am. Dec. 699; Anderson v. Taylor , 56 Cal. 131; 38 Am. St. Rep. 52.) Defendant did not know of the injury up to the time of the excavation, and therefore he is not liable, but the case is damnum absque injuria.

  10. Witkowski v. Hern

    82 Cal. 604 (Cal. 1890)   Cited 3 times
    Affirming finding constable was negligent, where constable held property that had been seized from plaintiff and, when property was later returned to plaintiff, property had been damaged while in possession of constable

    The cause was revived after the death of Nelson in the name of his executors, S. Witkowski and Albert Nelson, and upon the overruling of a demurrer filed to the third amended complaint, the defendant answered, and the cause was tried before a jury. A motion for a new trial was denied, except as to McGinley and Shultz, and the jury returned a verdict for the plaintiff in the sum of three hundred dollars, against the constable Hern and his [23 P. 133] sureties. From the judgment thereupon rendered, and an order denying a new trial, this appeal is taken.