Williams v. Southern Pacific Railroad

I dissent.I think there was evidence in the case on the question of negligence of defendant, and con *715 tributory negligence of plaintiff, which should have been submitted to the jury. This was done by the court below, and there was no error in so doing. The opinion of the majority in this case is in conflict with the judgments of this court in Shafter v. Evans, 53 Cal. 33 , Chidester v. Consolidated Ditch Co., 59 Cal. 197 , McKeever v. Market St. R. Co., 59 Cal. 300 , and Fernandes v. Sacramento City Ry. Co., 52 Cal. 45 . . See, also, New England Glass Co. v. Lovell, 7 Cush. (Mass.) 321, and Railroad Co. v. Stout, 17 Wall. 657 , 21 L. Ed. 745 . These cases hold that on questions of negligence (and in this I include contributory negligence, which denotes negligence on the part of the plaintiff) the jury are not only to find the facts, but such inferences as follow from them. The question only becomes one of law when- the facts proved are such that men of ordinary judgment and intelligence must all agree that they show negligence. The facts in this ease are not of that character, for they tend to show that the engineer in charge of the train could, if he had discharged his duty,…

The plaintiff, being intoxicated, lay down by .the side of the defendant’s railroad track, at a point within its right of way, about a mile distant from Salinas, in Monterey county, and went to sleep; and while lying there in that condition had one of his feet so crushed by the engine of the defendant’s south-bound passenger train as to require amputation. The train was on time, and was running at its usual speed of from eighteen to twenty miles per hour. At the conclusion of the plaintiff’s case a motion for nonsuit was made on behalf of the defendant, which the court below refused to grant; and a verdict having been subsequently returned for the plaintiff, the defendant moved for a new trial, which was denied.

An attentive examination of the record satisfies us that in both respects the court below was in error. There can be no sort of doubt that the act of the plaintiff in voluntarily going within the defendant’s right of way, and lying down and going to sleep by the side of the track, in such a position that a passing train must strike him, was gross negligence. It is not easy to conceive of any that would be grosser. The ease shows beyond question that that act on the part…