Chase

This is an appeal from a judgment for damages awarded plaintiff, arising out of injuries alleged to have been sustained by him when he was struck by a car of defendant corporation, which was being operated in a switching movement. Plaintiff was employed as a watchman of the property of the Pioneer Paper Company, over whose property a private railroad track and switch were established and maintained for the purpose of receiving and shipping its product. Gates were located at the entrance of the track upon said property, which were secured by two locks, one of which was placed and kept on the gates by the Pioneer Paper Company and the other by the defend ant Southern Pacific Company. On December 30, 1927, at the hour of 5:30 o’clock or thereabouts, the plaintiff, together with one Moriarity, was engaged in attaching to the gate the Pioneer Paper Company’s lock. While so engaged, appellant switched a box-car into the Pioneer Paper Company’s yard, striking the plaintiff and injuring him. The car was not accompanied by a trainman or yardman or any light.

The jury brought in a verdict in favor of the plaintiff for the sum of $8,500, whereupon defendant made a motion for a new trial.…

I dissent. My inability to agree with the conclusion reached by my associates depends upon the effect which in all probability resulted from the giving to the jury of the instruction that:

Eeferring to that part of the foregoing instruction by which the jury was told that in reaching its conclusion as to whether plaintiff was guilty of contributory negligence it should “view the situation as it appeared to him (plaintiff) ”,—in numerous cases in substance the law has been declared to be that:

The same thing is obviously true concerning that part of the instruction by which the jury was directed to determine whether plaintiff was guilty of contributory negligence “from the standpoint of a workman of the class to which plaintiff belonged”. As it has been repeatedly held, negligence, whether of the plaintiff or the defendant, may not be tested by any such asserted rule. “The conduct must be compared to that of an assumed person of ordinary prudence and must be considered with relation to all the circumstances attending the occasion which might reasonably be taken into consideration by a person of ordinary prudence in determining what his conduct should be.” (Scott v. San Bernardino…