Summary
In Robinson v. W. P. R. R. Co., 48 Cal. 409, it was held that in actions based on the negligence of defendants, "the complaint need not allege that the injury was done without fault of the plaintiff."
Summary of this case from Magee v. North P. C. R. Co.Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 48 Cal. 409 at 426.
Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
This action was brought to recover damages sustained by the plaintiff, Hannah, by the loss of an arm, as stated in the opinion. In the complaint, the damages were laid at twenty thousand dollars. There was no evidence of the expense of plaintiff's illness, or as to the amount of time lost by her, or its value to her, or as to her capacity to earn money. The evidence showed that she was engaged in washing.
The Court, at the request of the plaintiff, gave the following instructions to the jury:
" If the jury believe from the evidence that plaintiff, Hannah Robinson, sustained the injuries complained of in the complaint, through the carelessness or negligence on the part of defendant, and without negligence or carelessness on her part, then the jury should find for the plaintiff, and assess the damages in such sum as the jury, under the circumstances of this case in evidence, believe the plaintiff ought to recover, not exceeding $ 20,000.
" The plaintiff, Hannah Robinson, had a right to cross Sacramento street, at the ordinary and usual crossing of such street; and if the jury believe from the evidence that while she was crossing such street at the usual and ordinary crossing, and while so crossing, the defendant moved its train, without giving notice thereof so as to enable the plaintiff, Hannah Robinson, with reasonable care, to escape from injury by reason of the moving of such train; and if the jury further believe from the evidence that by reason of the moving of said train, and without giving reasonable notice to said Hannah Robinson thereof, she sustained the injuries in complaint mentioned; then plaintiff has a right to recover from defendant, and the jury should find for plaintiff.
" A railroad company is bound to use ordinary care and caution, to avoid injuring persons or property which may be upon its track.
" The managers of a railroad must take that degree of care which the majority of prudent and careful men would take, in the same situation, to avoid the same risks to their own persons, and to take such precautions against danger as the magnitude of the peril demands; and in this case, if you find from the evidence that the defendant, the Railroad Company, did not exercise such degree of care, and that by reason thereof the plaintiff lost her arm, as charged in the complaint, and that she did not contribute to such accident, then the plaintiff is entitled to recover such damage as you may find from the evidence she has sustained, not exceeding twenty thousand dollars."
The Court, of its own motion, gave the following oral charge to the jury:
" Gentlemen, in this case you have heard counsel in their argument speak to you about feeling and prejudice. This is a case, gentlemen, where a jury is required to look calmly and reasonably at the facts that have been presented in evidence. If you have any prejudice for or against the plaintiff or defendant in this case, any feeling or any passion, this is not the time or place for it to make any impression on you or influence your conduct at all. You are the judges of the truth of the evidence given by all the parties here; and if you believe that the party plaintiff has sustained damages under the circumstances here presented to you in the instructions, you will find for the plaintiff. If, on the contrary, under the law and under the evidence, she is not entitled to recover anything, then you will find for the defendant; and in writing your verdict, if you find for the plaintiff, you will say, we, the jury find for the plaintiff; and assess damages at what you think right. If you find for the defendant, you will simply say, we, the jury, find for the defendant."
Counsel for defendant asked the Court to give the jury the following instructions, which were refused:
No. 3. " The question presented to the jury is not one of comparative negligence as between the parties, and it matters not whether those in charge of the defendant's cars were more or less negligent, if the plaintiff, Hannah, by her own negligence, exposed herself, or was exposed by her own neglect or carelessness, to the accident which happened."
No. 4. " If the jury believe that the accident to the plaintiff, Hannah, was caused by the joint concurrent negligence of the plaintiff, Hannah, and those in charge of the cars of the defendant, then the plaintiff cannot recover. It is immaterial on which side the preponderance of blame lies; if both were at fault at the time of the injury, the plaintiff cannot sustain the action, and the jury must find for the defendant."
No. 15. " Even if the persons in charge of defendant's train neglected to ring the bell, or to give any signal before starting it, still, if the plaintiff, Hannah Robinson, might have avoided the accident by the exercise of ordinary care, and her own carelessness directly contributed in producing the injury complained of, the plaintiff cannot recover."
COUNSEL
It is the settled law of this Court, that in cases of this character, the gravamen of the action is the negligence of the defendant, and hence that the plaintiff cannot recover, where his own negligence has contributed directly in any degree, to the injury sustained. (Richmond v. Sacramento Valley Railroad Co. 18 Cal. 351; Gay v. Winter, 34 Cal. 153; Kline v. C. P. R. R. Co. 37 Cal. 400; Needham v. San Francisco and San Jose Railroad Co. 37 Cal. 409; Moore v. The Central Railroad, 4 Zab. 268; Runyon v. The Central Railroad Co. 1 Dutcher, 556.)
The burden of proof always rests upon the plaintiff, and it is not enough for him to prove that he has sustained an injury by the act or omission of the defendant. He mustshow in addition, that the defendant, in such act or omission, violated a duty resting upon him. (Robinson v. Fitchburg, etc. R. R. Co., 7 Gray, 92; McCully v. Clarke, 40 Penn. St. 399.)
Nor is it enough for him to show that he has sustained an injury through the violation of some duty resting upon the defendant. He must show, in addition, that he himself exercised ordinary care and caution; for if he could have avoided the injury, notwithstanding the neglect of the defendant, he cannot recover. (Parker v. Adams, 12 Metcalf, 415; Tisdale v. Inhabitants of Norton, 8 Id. 388; Kennard v. Burton, 25 Maine, 39; Runyon v. The Central Railroad Co., supra. )
But it is conceded that if the plaintiff did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury, he will be entitled to recover. (Butterfield v. Forrester, 11 East. 60; Kennard v. Burton, 25 Maine, 39.) The same qualification, however, applies to the liability of the defendant. Although he may have been negligent, or omitted some act which it was his duty to perform, yet if such omission did not contribute to the injury of the plaintiff, he is not liable. Hence it has been held that a traveler approaching a railroad track is required to use his eyes and ears, if he would avoid the imputation of negligence, even though the railroad company may neglect the proper signals. (Ernst v. Hudson River R. R. Co., 39 N.Y. 61.) Also, that the negligence of the company in not ringing the bell, or sounding the whistle, does not excuse the plaintiff from the exercise of ordinary care and prudence in attempting to cross the track of the road. (Wilcox v. Rome, Watertown and Og. R. R. Co., 31 N.Y. 358.) And that one who is approaching a railway crossing is not absolved from the duty of looking up and down the track to see whether a train is approaching, by the omission to ring the bell or blow the whistle; and if failure to take such precautions contributes to any injury received by him by a collision with trains running on said railroad, he cannot recover for such injury. (Havens v. The Erie Railway Co., 41 N.Y. 296.)
So in Massachusetts, where by statute the drivers of sleighs are required to use bells on their harness, it was held that the plaintiff could not recover, it appearing that the omission of the defendant to use bellsdid not contribute to the injury complained of. (Kidder v. Inhabitants of Dunstable, 11 Gray, 342.) It was considered that the defendant was liable for the penalty imposed by the statute, but not for the injury to the plaintiff, if the omission to comply with the statute did not contribute to produce it.
Such is the rule of the statute of this State, which requires railroad corporations to keep a bell on their engines, and to ring it on certain occasions. For a neglect of the duty imposed, the statute provides a penalty of one hundred dollars, and that " said corporation shall also be liable for all damage which shall be sustained by any person, by reason of such neglect." (Section forty-one of the statute in relation to railroad corporations.) This necessarily implies that the corporation is not liable for damages where the not ringing of the bell has not contributed to produce the injury. The evidence of contributory negligence is stronger than in either of the following cases, in each of which a judgment against the defendant was reversed. ( The Toledo and Wabash Railway Company v. Goddard, 25 Ind. 185; Wilcox v. Rome, Watertown and Ogdensburg R. R. Co., 39 N.Y. 358; Havens v. Erie Railway Co., 41 N.Y. 296.)
There having been no special damage proved, there was no basis for the jury to act on, except what the Court gave them, their own sense of right. The verdict was therefore obviously the result of passion or prejudice. Upon this point I take the following report of an English case, from Van Nostrand's Engineering Magazine for June, 1870, at page 617:
" At the Liverpool Assizes, on Saturday, a piano dealer and tuner of pianos said to be earning three hundred pounds (300) per annum, claimed damages for such injuries received in an excursion train on the London and North Western Railway, as incapacitated him for the pursuit of his calling. Mr. Justice Brett, in addressing the jury, said that if sufferers from railway accidents got annuities equal to their prospective earnings, it would be impossible for the companies to carry on their business. Both parties, he held, should share the consequences of an ordinary liability to accident, and bearing this fact in mind, as well as the fact that railway companies were compelled to carry passengers, the jury should assess damages accordingly. The award of the jury was six hundred pounds(600)."
Thus the jury allowed him his prospective earnings for two years. In the present case the jury have allowed the plaintiff a sum equal to her prospective earnings for more than twenty years.
In actions for injuries to persons or property it must appear from the complaint, either by direct averment or the nature of the case stated, that the plaintiff was not in fault. In support of the negative of this proposition, counsel upon the other side have cited a number of cases, all of which, with a single exception, are not in point. ( May v. Hanson, 5 Cal. 360; Finn v. Vallejo Street Wharf, 7 Cal. 253; Richmond v. S. V. R. Co. 18 Cal. 351; Gay v. Winter, 34 Cal. 153; Needham v. S. F. & S. J. R. Co. 37 Cal. 409, and Johnson v. The Hudson R. R. Co. 20 N.Y. 73.) All these deals with the question of evidence, and do not touch at all upon the question of pleading. So far as the first two hold that the burthen of proof as to the negligence of the plaintiff, if any, is upon the defendant, they have been overruled in the other and later cases cited. Smith v. Eastern R. R. Co. 35 N.H. 356, and Taylor v. Day, 16 Vt. 566, merely hold that a complaintwhich does not contain an averment that the plaintiff was without fault, is good after verdict, a doctrine which is not only wholly inapplicable to our own system of practice, but in direct opposition to it. Under our practice, the objection that the complaint does not state a cause of action may be taken at any stage of the action--after verdict as well as before--from which it necessarily results that there is no cure for a bad complaint, except amendment. In Gough v. Bryan, 2 Mees. & Welsb. 770, and Bridge v. Grand Junction R. R. Co. 3 Id. 244, no point was made as to the sufficiency of the declaration. The defendants pleaded the negligence of the plaintiffs, and the plaintiffs demurred to the pleas, and the pleas were held bad.
The decision in Wolfe v. Supervisors of Richmond, 11 Abb. Pr. R. 270--the only case cited by counsel which deals directly with the question of pleading--is entitled to no more weight as authority than would be the decision of a Judge of the District Court of this State. As an argument the opinion is worthless, for it contains no satisfactory discussion of the question. The great weight of authority is in favor of the doctrine that the burthenof proof is on the plaintiff to show himself blameless, and I understand such to be the settled doctrine of this Court. (Gay v. Winter, 34 Cal. 153; Needham v. S. F. & S. J. R. Co., 37 Id. 422; Kline v. C. P. R. Co., 37 Id. 406.) The same doctrine prevails in Indiana, and in that State its natural sequence--that the plaintiff was not in fault must be averred--has been repeatedly declared. ( The Michigan Southern and Northern Indiana R. R. Co. v. Lantz, 29 Ind. 528; The Evansville and Crawfordsville R. R. Co. v. Dexter, 24 Id. 511; The Indianapolis, Pittsburgh and Cleveland R. R. Co. v. Keely's Adm's, 23 Id. 133; The Evansville and Crawfordsville R. R. Co. v. Hiatt, 17 Id. 102; The Wayne, etc., Turnpike Co. v. Berry, 5 Id. 286; The President, etc., v. Dusouchett, 2 Id. 286; The Jeffersonville R. R. Co. v. Hendrick's Adm's, 26 Id. 228; The Toledo W. & W. R. Co. v. Bevin, 26 Id. 443.) The same rule prevails in Illinois. (The Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 373-6; Galena & C. U. R. R. Co. v. Fay, 16 Id. 558.)
S. W. Sanderson, for the Appellant.
Dudley, Budd & Scaniker, for the Respondent.
If the plaintiff is guilty of negligence in going upon arailroad track, yet the company are bound to exercise reasonable care and diligence in the use of their road; and if for want of that care the plaintiff is injured, the company is liable. (Richmond v. Sacramento R. R. Co. 18 Cal. 351; Needham v. S. F. & S. J. R. R. Co. 37 Cal. 409.) It is not every case of negligence of the plaintiff which will preclude him for recovering for an injury occasioned by the negligence of the defendant. (Brown v. N.Y. C. R. R. Co. 31 Barb. 385.) Neither do we agree to the proposition that in such cases the burden of proof is always upon the plaintiff--that is, that the plaintiff must show affirmatively that his own conduct on the occasion of the injury was cautious and prudent. This may be inferred from the circumstances in connection with the ordinary habits, conduct and motives of men; and the character of the defendant's negligence may be such as prima facie to prove the whole issue; and also the known disposition of men heedlessly to subject themselves to difficulty, is to be taken into consideration in determining the question. (Johnson v. The Hudson R. R. Co. 20 N.Y. 65; Shearman and Redfield on Negligence, Secs. 43-44.) Butwe can admit, for the sake of the argument, and without prejudice to respondent's theory of this case the rule of law, on that point, to be as stated by appellant's counsel. The plaintiff's evidence brought her entirely within the rule, and she gave positive, direct and affirmative proof touching her own conduct as well as that of the servants of the corporation on the occasion of the accident.
It was the duty of the engineer, or persons in charge of the locomotive, to look out at the crossing to see if there was any danger of a collision with any one about to cross the track. (Wilds v. The Hudson River Railroad Co. 33 Barb. 503.) We are aware that it is comparatively easy for counsel to point out now, by the light of after events, and sitting in tranquil safety, what would have been wise for the plaintiff to have done then; but most persons under such circumstances of instant, threatening peril, act rather from instinct than cool judgment and calm reasoning. It would be a hard rule indeed if the law demanded any such impossibility as judicious and wise conduct under such circumstances; and if, as we claim, the defendant's negligence had placed her in this imminent peril, then the defendant is answerable for the consequences, though the plaintiff did not exercise the soundest discretion in her efforts to escape. (Eldridge v. Long Island R. R. Co. 1 Sand. S.C. R. 89; 13 Peters, 181; Collins v. Albany & S. R. R. Co. 12 Barb. 492.)
Instruction number four, which was given at plaintiff's request, states the rule of law correctly, and as laid down by this Court, in Needham v. S. F. & S. J. R. R. Co. (37 Cal. 409; Shearman and Redfield on Negligence, Sec. 28.) The instruction was applicable to the case because it was clearly proved at the trial that the persons in charge of the locomotive kept no lookout at the street crossing, as they were required to do. Had they exercised reasonable care and diligence in that respect alone, they could have avoided the accident. For want of such reasonable diligence on the part of the company, the plaintiff was put in imminent peril, and was not in fault in attempting to cross the track; hence her right to recover is not affected, even if she did contribute to her injury. Under such circumstances the instruction was proper, and could not have misled the jury.
The measure of damages in such actionsis somewhat vague and uncertain, hence it is that the Court in the case of Coleman v. Southwick (9 John. N.Y. 44,) declared that the damages must be so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable, and such as manifestly show the jury to have been actuated by passion and prejudice. In short, the damages must be flagrantly outrageous and extravagant, or the Court cannot undertake to draw the line, for they have no standard by which to ascertain the excess.
In an action to recover damages for injuries to person or property, it is not necessary to aver in the complaint that the acts complained of did not occur through the negligence or carelessness of the plaintiff. In support of this point we refer the Court to the following authorities: May v. Hanson, 5 Cal. 560; Finn v. Vallejo Street Wharf, 7 Cal. 253; Richmond v. S. V. R. R. Co. 18 Cal. 351; Gay v. Winter, 34 Cal. 153; Needham v. S. F. & S. J. R. R. Co. 37 Cal. 409; Johnson v. The Hudson R. R. Co. 20 N.Y. 73; Smith v. Eastern R. R. Co. 35 N.H. 356; Gough v. Bryan, 2 Mees. & Walsh, 770; Bridge v. Grand Junct, R. R. Co. 3 Mees. & Walsh, 244; Taylor v. Day, 16 Vt. 566; Wolf v. Supervisors of Richmond, 11 Abb. Pr. 270.
In the cases cited in the fifth and seventh Cal. Rep. this Court held that " it is not incumbent on the plaintiff to prove the exercise, by him, of ordinary care to avoid the injury, but the want of it upon the part of the plaintiff lies on the defendant; that he who avers a fact in excuse for his own misfeasance must prove it." See also Beatty v. Gilmore (16 Penn. 463).
JUDGES: McKinstry, J.
OPINION
McKINSTRY, Judge
The defendant filed a petition for a rehearing, and the following opinion was delivered, denying the application.
By the Court:
The point presented in the petition for rehearing is that there is no averment in the complaint that the plaintiff sustained the injury in question without any fault on her part.
It would seem that this omission has been held to render the pleading defective in Indiana, Illinois and Maine. (Michigan, etc., R. R. Co. v. N.Y. R. Co. 29 Ind. 528; The Chicago, etc. R. R. Co. v. Hazard, 26 Ill. 373; Buzzell v. Laconia Man. Co. 48 Maine, 113.)
We think the proposition that negligence on the part of the plaintiff is a matter of defense, to be proved affirmatively by the defendant, unless it can be inferred from circumstances proved by the plaintiff, is sustained by the better reason. (Shearman and Redfield on Negligence, Secs. 43, 44; Penn. Canal Co. v. Bentley, 66 Penn. St. 30; Smoot v. Wetumpka, 24 Ala. N. S. 112; Johnson v. Hudson River R. R. Co. 5 Duer, 21.)
In this class of cases the complaint need not allege that the injury was done without fault of the plaintiff. The petition for rehearing is denied.