Mitchell v. Southern Pacific Railroad

This is an action to recover damages for personal injuries sustained by plaintiff while traveling as a passenger on one of defendant’s trains.

Appellant contends that the judgment and order should be reversed, because plaintiff failed to show negligence in the management of the train, or any defect in the defendant’s railroad track.

It is doubtless true, as claimed by appellant, that in cases of this character the burden of proof is upon the plaintiff to establish negligence on the part of the defendant, and that the mere fact that a passenger was injured while on his journey is not sufficient to raise a presumption of negligence on the part of the carrier. But in this case not only is the injury admitted, but the derailment and overturning of the car are undisputed facts, and there is evidence tending to show that at the time the accident occurred the train was running down a steep incline leading to the bed of a river, on a new and curved track, at an unusual and dangerous speed. This showing was sufficient to throw upon the defendant the burden of proving that the injury was not caused by any want of care on its part. (Boyce v. Cal. Stage Co., 25 Cal. 460 ; Lawrence v. Green,…

I dissent. The exclusion of the testimony of Smith on which the reversal is ordered could not possibly have caused any injury to the defendant. Evidence of the return of the conductor before the catastrophe occurred in which the plaintiff was injured was already in and uncontradicted. The conductor had already testified to the fact of such return. The time of the return of the conductor from the platform could not possibly show how long the plaintiff stood on the platform, as the conductor, when he returned, left the plaintiff standing on the platform. The evidence shows that the conductor and plaintiff went on the platform at the same time. The conductor returned, leaving plaintiff on the platform. How could the time of the *78 return of the conductor show how long plaintiff remained on the platform after such return ? If the return of the conductor from the platform could show anything as to the time that the plaintiff remained on the platform after such return, the fact of his return was already in evidence and uncontradicted. A case carefully and laboriously tried should not be sent back for a new trial for an error, if any, so trifling.

Rehearing denied.