Holmes
Holmes v. Southern Pacific Co.
Opinion
Lead Opinion
Temple, J.
This action was brought by the administratrix of William E. Holmes, deceased, to recover damages for the death of the decedent, which it is alleged was caused by the negligence of the defendant.
*359 The defendant denies that it was negligent, and charges contributory negligence on the part of the deceased.
The negligence charged against the defendant is alleged to consist in the improper construction of the two cars which deceased was in the act of coupling when he was injured, and in the alleged neglect to repair the same and to keep them in good condition. The defendant contends that there was no proof that either car was defective, and certainly none of negligence in that matter on the part of the defendant.
It is admitted that the burden of proof is on the plaintiff, and that the mere fact of the accident and consequent injury does not prove negligence, but respondent contends, nevertheless, that the accident and the attendant circumstances do show that one or both of the cars were defective. Respondent states the facts which she claims prove the defective construction of the cars as follows:
It is evident that the first three statements have very little bearing upon the…
Dissenting Opinion
Garoutte, J.
I dissent. Two loaded freight-cars came together while a brakeman was between them in the act of making a coupling. His death was the result. The verdict of a jury held the defendant guilty of negligence and awarded damages. The case is now reversed and a new trial ordered upon the ground that the evidence does not justify the verdict. I do not agree with such conclusion. The jury was justified from the evidence in finding that these two cars were both cars belonging to defendant; that the standard height of the drawheads of defendant’s freight-cars was thirty-three inches from the rail; that there was a difference in the height of the drawheads of these two cars of at least one and one-half inches; and that, therefore, one of the cars was defectively constructed or became defective after construction. Having found these facts, the jury were entirely justified in finding that the accident was occasioned by reason of the mismatched drawheads. Defendant had no right to furnish two such cars to the brakeman to be coupled, and was guilty of negligence in so doing.
Rehearing denied.