Smith v. Pacific Electric Railway Co.

This action was brought for the recovery of damages caused to plaintiffs by the death of Archie Smith, who was killed upon the railroad tracks of defendant by one of its electric freight motors. Plaintiffs sued as the heirs of deceased. At the conclusion of the evidence offered by plaintiffs the trial court granted a motion for nonsuit on the ground that the evidence showed that deceased lost his life because of his contributory negligence, and judgment went for defendant accordingly. Plaintiffs appeal.

It is contended that the court erred in granting the motion for nonsuit. At the time of his death deceased was of the age of fifty-six years, well, vigorous, and in the full possession of all his faculties. He resided at one of the four corners formed by the intersection at right angles of respondent’s right of way with a certain highway. On another of these corners, directly across respondent’s double electric railway tracks from the residence of deceased, was situated a store. At a distance seventy-two feet from the highway property line a path crossed the tracks in a slightly diagonal direction from a point at or near the residence of deceased to a point at or near the store.…