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"serious” added nothing to the gravity of the power of continuous application and concentraconduct. Any willful misconduct that leads tion, it will, upon the other hand, center its

thought for a brief time and to its peril upon to death or great bodily injury must neces

one matter to the exclusion of all else." sarily be serious.

With this well-known characteristic of In reference to the Powell Case, from Scot- youth in view why should it be thought a land, it is apparent that the decision is based strange thing that a boy of 15 should forget upon two grounds: First, that the accident did not arise "out of the employment” of the an order given him, and, in a moment of for

getfulness, do that which was forbidden? deceased; and, second, that he was guilty of And acting thus, how could his conduct be deliberate and intentional wrongdoing when

justly denominated "willful misconduct"? he went to a place where he had no right to In that event it would be, properly speaking, be and placed himself in a dangerous position willful misconduct to no greater degree than against which he had been warned. The Fanny Callahan Case was decided in either case it might be, and, in this case

if he did the act in the absence of any order. upon the same grounds.

it would be, contributory negligence but noth[2] In all these cases holding that the vic

ing more. tim of the accident was chargeable with

It is probably true, as contended, that the willful misconduct, it seems to have been assumed that the violation of the rule was in portion of the finding as to oiling the ma

chinery while in motion in order to save time tentional and deliberate, and, as far as we does not indicate a sufficient palliation or are advised, there was no attempt to excuse it on the ground of inadvertence or thought- posed to the idea that he had an intentional

excuse for his conduct, yet it is at least oplessness. The violation of a rule known to ly disobedient frame of mind, and is in aid the party would, of course, raise the pre- of the conclusion that there was an absence sumption that it was done deliberately and

of willfulness. intentionally, but is it not a disputable pre

[3] Looking at the evidence, we find suffi. sumption ? May not a person, although guilty of an infraction of an order given for cient support for the inference that he was

not intentionally and deliberately disobedihis protection, show that at the time he was

ent. The boy himself, when asked: "Were unmindful of the order, and that his act was the result of inattention and thoughtlessness you aware at the time that you were violatand without any real purpose to be contuma- know and think at the time that you were

ing your employer's instructions? Did you cious? Petitioner contends that to permit disobeying orders?" replied: "No, sir; I this course would open the door to fraud and didn't think.” He further said that at the perjury. In some cases, no doubt, such

time he did not remember that Diestelhorst would be the effect, but these evils will never had told him not to oil the machinery while be entirely avoided in the attempt to admin. in motion. Indeed, one cannot read the recister justice through human instrumentalities. But the objection goes rather to the of the candor and honesty of the witness.

ord without obtaining a strong impression weight and effect of the evidence than to its He was anxious to save time, and he wanted admissibility. When the person violates a to get out as much dirt as possible. He was known rule, it should be held ordinarily that in the habit of oiling right after lunch before be does it deliberately, but we do not think the machinery was put in motion, but on that the door should be closed entirely against this occasion he started it in obedience to the inquiry whether it may not have been the direction of petitioner, or, as the boy the result of thoughtlessness and inadvert

explained it: ence, at least in the case of a mere child.

"We were then eating dinner, and right after Where a minor is involved why should not dinner Diestelhorst wanted to go and fix a the same consideration be shown as in the bridge across the creek, and there was a 'jack' ordinary action for damages wherein contrib- out where we were dredging, and he said to

move that, and I started up, and he passed the utory negligence is urged as a defense? Why chain around it and moved it, and I shut off the should not the distinction be recognized that power and went to oiling." is so learnedly pointed out in the case of We think from these considerations that Maud Guyer v. Sterling Laundry Co., 171 the Commission might conclude with legal Cal. 761, 154 Pac. 1057? Therein, as to mi- propriety that the boy was not chargeable nors, it is said:

with such willful misconduct as to deprive “Mentally, a tremendous growth must take him of the benefits of the Compensation Act place,

before knowledge has ripened and the writ is therefore discharged, and the into wisdom and wisdom coupled with experi

award affirmed. ence, has developed a sound and sane judgment.

Youth is ever the time of heedlessness, of impulsiveness, and of forgetfulness. Lacking We concur: CHIPMAN, P, J.; HART, J.

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(33 Cal. App. 15)

| SHAW, J. This is an action brought by DILGER v. WHITTIER. (Civ. 1616.) | plaintiff, a minor four years of age, to reDistrict Court of Appeal, Second District, Cal- cover damages for personal injuries sustainifornia. Feb. 14, 1917.)

ed while playing in a vacant lot adjoining 1. HIGHWAYS Om 184(2) – INJURY TO PEDES her father's place of business, as a result TRIAN-EVIDENCE-SUFFICIENCY.

of being struck by an automobile driven by In an action for personal injuries sustained

one Earl Oldham, which, it is claimed, was by a child when struck by an automobile, which was diverted from the roadway by reason of a

diverted from the roadway and precipitated collision with an automobile operated by defend against plaintiff by reason of colliding with ant, evidence held to justify a finding that the another automobile negligently operated by injury was due solely to defendant's negligence in operating his car, and that the operator of defendant. The case was tried by a jury, the other car was not guilty of any negligence which rendered a verdict for plaintiff in the which contributed to plaintiff's injury.

sum of $1,000, for which judgment was en(Ed. Note. For other cases, see Highways, tered in her favor, and from which, and an Cent. Dig. $$ 472, 47342.)

order denying his motion for a new trial, 2. APPEAL AND ERROR 1032(1)—BURDEN TO

defendant appeals. SHOW PREJUDICIAL ERROR.

It devolves upon an appellant to show prej. Appellant's chief contention is that the udicial error.

verdict is not justified by the evidence, in [Ed. Note.-For other cases, see Appeal and that it fails to show that defendant was Error, Cent. Dig. 88 4047, 4051.]

guilty of any negligence in operating his car, 3. APPEAL AND ERROR 928(2)-REVIEW | but, on the contrary, shows that the injury PRESUMPTIONS.

Where the instructions are omitted from the sustained was due to Oianam's negli record on appeal, the appellate court must pre- | Not only is the evidence touching the action sume that the jury was properly instructed as of both Oldham and defendant in operating to the law applicable to the case.

their respective cars conflicting, but the plat (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3750, 3753.]

of the location and position of the cars used 4. EVIDENCE 474(8)–SPEED-KNOWLEDGE

by the witnesses in testifying is not before OF WITNESS.

us; hence much of the testimony is meaningAs the objection that a witness who testified less. No purpose could be served by an exas to the speed of defendant's car had not seen

tended reference to the conflicting evidence. the car in sufficient time prior to the collision to enable him to testify on the subject goes to Suffice it to say, there appears to be, testithe weight, rather than to the competency, of mony which tended to show and which, when the evidence, and as such testimony differed but

illustrated by the plat in connection with little from that offered by the defendant on the same subject, its admission was not error.

which it was given, might, and therefore [Ed. Note.-For other cases, see Evidence, since it is not brought up we must assume Cent. Dig. § 2202.]

that it did, clearly justify the jury in finding 5. APPEAL AND ERROR 1050(1)-HARMLESS that the injury was due solely and alone to ERROB.

defendant's negligence in operating his car. Any error in the admission in evidence of the torn clothes of the child, and testimony as to

| [1-3] The accident occurred in the unintears and rents therein, was harmless as the evi. corporated town of Fellows, in Kern county, dence did not tend to show either negligence of through which a highway, known as the defendant or injuries to the child.

Midway road, extended north and south. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8$ 1068, 1069, 4153, 4157.]

The father of the plaintiff, W. J. Dilger, had 6. NEW TRIAL 88-GROUNDS_DISCRETION

a place of business on the east side of this OF COURT.

highway, which, between the sidewalks, was As no facts were stated from which the trial some 47 feet in width. Adjoining Dilger's court could determine what effort the sheriff had made to serve a subpæna upon two alleged ma

place of business on the north were two terial witnesses for defendant, and it was not vacant lots, on one of which, and next to the shown that the defendant placed the subpæna in northwest corner of her father's house, plainthe hands of the sheriff before the trial was com- i tiff was playing. Defendant was driving a menced, there was no abuse of discretion in de nying a new trial upon the ground of surprise,

| Cadillac car on the right-hand side of this which ordinary prudence could not have guard-highway, going in a southerly direction at a ed against.

speed of some 20 or 25 miles per hour, and [Ed. Note.-For other cases, see New Trial,

Oldham, driving a Ford car, was closely Cent, Dig. § 176.)

following a Santa Fé car going northerly and Appeal from Superior Court, Kern County; I traveling near the center of the roadway. J. W. Mahon, Judge.

At a point about opposite Dilger's place, deAction by Florencia Dilger, a minor, by W. I fendant met the Santa Fé car, when, instead J. Dilger, her guardian ad litem, against c.

of passing it to the right, he turned to the F. Whittier. From a judgment for plaintiff, left thereof, and when clear of the Santa Fe and an order denying a motion for new trial, car met the one driven by Oldham, who, defendant appeals. Affirmed.

while in the rear of and close to the Santa Fe Geo. E. Whitaker, of Bakersfield, for ap-car, was nearer to the sidewalk on his right. pellant. Rowen Irwin, of Bakersfield, and At the time it appears that Oldham was travFred L Seybolt, of San Francisco, for re- eling at a speed of 5 miles per hour, and, spondent.

seeing defendant approaching at a high speed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
164 P.-4

immediately in front of him on the wrong (out success. No facts are stated from which side of the highway, turned sharply to the the court could determine what effort the right, toward the vacant lot, in an effort to sheriff made to serve the subpoena, and from escape, when defendant's car collided with aught that is shown to the contrary, defendthe side of the Ford machine, projecting ant did not place the subpana in the hands it some 15 feet, against the child on the of the sheriff with instructions to serve it vacant lot. Presumably the jury concluded until the trial was commenced. It cannot be the accident would not have occurred had said there was any abuse of discretion on the defendant observed the law of the road, part of the court in denying the motion upwhich required him to pass to the right of on such ground. the Santa Fé car. On the other hand, Old Finding no prejudicial error in the record, ham, since he was operating his car slowly the judgment and order appealed from are on the side of the street to which he was affirmed. entitled, was not, as shown by the record, guilty of any negligence which contributed to We concur: CONREY, P. J.; JAMES, J. plaintiff's injury. It devolves upon an appellant to affirmatively show prejudicial er

(32 Cal. App. 756) ror. Upon the record presented it cannot be said there is an absence of sufficient evidence HAMMOND V. PACIFIC ELECTRIC RY.

CO. (Civ. 2205.). to justify the verdict of the jury, which we must presume, in the absence of the instruc- (District Court of Appeal, Second District, Caltions, copy of which is omitted from the rec

ifornia. Feb. 8, 1917.) ord, was properly instructed as to the law ap- 1. STREET RAILROADS 98(6)-ACCIDENTS ON

TRACKS-DUTY TO PEDESTRIANS. plicable to the case.

The duty of a pedestrian in crossing a city [4] Basing his claim upon the fact that W. street is to use ordinary care with regard to J. Dilger's view of defendant's car prior to street cars, which is the degree of care which its colliding with that of Oldham was not ably be expected to exercise under the circum

people of ordinary prudent habits would reasonof sufficient length as to time as to enable stances of a given case, and the rule governing him to testify upon the subject, appellant in the duty of a pedestrian about to cross a steam sists the court erred in permitting him to tes- railroad or an interurban electric railroad in the tify that it was running at a speed of 20 to 25 country does not apply to city streets "in all its miles per hour. In our opinion, the objection [Ed. Note.–For other cases, see Street Railgoes to the weight rather than to the compe- roads, Cent. Dig. $ 207.) tency of the evidence, which differed little, if |2. STREET RAILROADS 114(13)—ACCIDENTS any, from evidence upon the same subject

ON TRACKS — ACTIONS - EVIDENCE-SUFFIoffered by defendant. In no event could it

In action for damages for personal injuries have affected the verdict.

received by plaintiff when hit by defendant's [5] The court, over defendant's objection, street car, in which negligence of defendant was permitted plaintiff to introduce in evidence established, evidence held to support a jury findthe torn clothes of the child, and to testify as

ing that plaintiff was not guilty of contributory

negligence. to tears and rents therein. While the evi

[Ed. Note.-For other cases, see Street Raildence was immaterial, inasmuch as it did not roads, Cent. Dig. § 248.] tend to show either negligence on the part of 3. TRIAL On 260(8)—PERSONAL INJURY-INdefendant or injuries to the child, neverthe STRUCTIONS. less it is impossible to conceive how defend that a person alighting from a car and intending

The rule stated in a requested instruction, ant could have been prejudiced by the ruling. to cross the street behind the same is charged Surely the dress shown to have rents in it with the duty of exercising ordinary care to was not calculated to appeal to the passions look and listen for approaching cars before at

tempting to cross, and is charged with the duty of the jury to such an extent as to cause it of keeping up the exercise of ordinary care in to render a verdict for excessive damages; looking and listening for approaching danger unnor is the verdict in this case, when the til the last moment, before passing from a child's injuries are considered, subject to omission of such ordinary care constitutes neg.

place of safety to one of danger, and that the such objection.

ligence, and if thereby plaintiff contributes di[6] One of the appellant's grounds of mo- rectly or proximately to the injury she cannot tion for a new trial was surprise which or

recover, was sufficiently and correctly stated in

an instruction that the motorman in charge of a dinary prudence could not have guarded car has the right to assume that a pedestrian in against, in support of which defendant filed the street is in possession of all his faculties, the affidavit of his attorney, from which it unless there is notice to the contrary, and will

use reasonable diligence and ordinary care to appears that at some time—whether before avoid danger to himself, and that the failure to or pending the trial is not shown-he placed use such diligence and care is negligence, and in the hands of the sheriff of Kern county a position of danger from which she was unable

that if the plaintiff negligently placed herself in for service a subpæna for Earl Oldham and to escape, and the motorman of defendant's car, one Mait Smith, both of whom, it was claim- which struck her, used every effort in his powed. would give material testimony in favor er to avoid striking her after discovering her

danger, verdict must be for defendant. of the defendant; that diligent search was

[Ed. Note.-For other cases, see Trial, Cent. made by said sheriff for said witnesses, with-| Dig. 8 657.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CIENCY.

1. TRIAL C 296(4, 5)-PERSONAL INJURY-IN Action by Leah Hammond against the PaSTRUCTIONS.

cific Electric Railway Company. From a An instruction that if plaintiff found herself suddenly in peril, without sufficient time to con: judgment for plaintiff, and from an order desider all the circumstances, she might be excus- nying motion for a new trial, defendant apable for omitting some precautions in making an peals. Affirmed. immediate choice under this disturbing influence, although, if her mind had been clear, she ought Frank Karr, R. C. Gortner, and A. W. Ashto have done otherwise, and that if she found burn, Jr., all of Los Angeles, for appellant. herself in imminent danger just prior to and at W. 0. Morton, Harry A. Hollzer, T. A. Wilthe time of the collision, and at that time tried to escape the peril, and in thus doing acted as an liams, and C. B. Morton, all of Los Angeles, ordinarily prudent and reasonable person would for respondent. bare acted under the same or similar circumstances, the jury could not find on this account that she was guilty of contributory negligence,

CONREY, P. J. This is an action to redid not purport to say that a person in sudden cover damages for personal injuries received peril by his own negligence is relieved from the by the plaintiff, who was hit by a car of the imputation of contributory negligence, but only defendant while she was crossing a street in stated the principle that an unwise choice under such peril is not of itself contributory negli- the city of Pasadena. Fair Oaks avenue runs gence, when considered with instructions that north and south, and is intersected by Caliif the plaintiff had failed to use such care that fornia street. The defendant has a doublea person of ordinary prudence would have used under the same or similar circumstances, and track railroad on each of those streets. It's such failure contributed proximately caused the interurban cars run on Fair Oaks avenue, injury, plaintiff could not recover, and an in- and some of its north-bound cars turn east struction that all of the instructions ought to

on California street at that intersection. be considered as a whole in arriving at the verdict.

Some of its local cars run westerly on Cali[Ed. Note. For other cases, see Trial, Cent. (fornia street from Fair Oaks avenue. The Dig. $ 709.)

plaintiff was a passenger coming from Los 5. TRIAL Cm 295(1)-INSTRUCTIONS.

Angeles, and as such passenger she received It is the duty of the jury to consider all of a transfer entitling her to go west on a Calithe instructions given as a whole in arriving at fornia Street car. The northbound two-car the verdict.

[Ed. Note. For other cases, see Trial, Cent. train from Los Angeles, on which she was a Dig. $$ 703, 704, 713, 714, 717.)

passenger, stopped at California street, and 6. STREET RAILROADS m102(2) INJURY TO then turned east on that street. The plainPEDESTRIANS–CONTRIBUTORY NEGLIGENCE,tiff alighted from the rear car of the train PROXIMATE CAUSE.

The mere fact that plaintiff was careless and at a point about 100 feet south of California negligent is not of itself sufficient to excuse the street. A West California Street car was defendant, if such carelessness is remote in the waiting on the west side of Fair Oaks avechain of causation and did not contribute prox- nue to receive passengers.

This was at 6 imately to the cause of the injury. (Ed. Note. For other cases, see Street Rail. When she alighted from the steps of her

o'clock in the evening on January 29, 1912. roads, Cent. Dig. $ 203.] 7. APPEAL AND ERROR 1066 REVIEW

car on the east side thereof, she looked north PREJUDICIAL ERROR.

and saw some of the passengers at the front Although an instruction that the mere fact of the train, who were moving around the that plaintiff was negligent did not excuse de front of the train to go to the California fendant's negligence, if plaintiff's negligence was remote and did not contribute proximately

Street car. The plaintiff looked south, and to the injury was irrelevant, it was not preju- then crossed the track at the rear of her dicial.

train, and started to cross the westerly or [Ed. Note. For other cases, see Appeal and south-bound track to go to the California Error, Cent. Dig. § 4220; Trial, Cent. Dig. $ 558.)

Street car. In so doing she did not look to 8. STREET RAILROADS Om 118(11)-ACTION FOR

the north, and did not either see or hear an INJURY-INSTRUCTIONS.

approaching south-bound car which was comAn instruction that if plaintiff, at the time ing toward her at the rate of about 12 miles of the accident, may or may not have been guilty per hour. The car was so close to her that, of such contributory negligence as under the instructions of the court relieved the defendant of after coming into the place of danger, she liability, which otherwise would have attached, was unable to escape, and the motorman was before the jury could find for defendant it must unable to stop the train in time to avoid appear by the preponderance of the evidence that plaintiff was guilty of such contributory striking the plaintiff. negligence as to excuse the defendant, which The plaintiff alleged that the defendant must appear from satisfactory evidence or such inferences as the jury may legally draw from

was negligent, in that it was moving its train the evidence that the jury must not speculate at an excessive and dangerous rate of speed, or guess, but their minds must be convinced, does and in that no warning or signal was given pot state the doctrine of comparative pegligence, by which she could be notified of the apbut only requires that it be established that plaintiff was guilty of such contributory negli- proach of the car. Although there is some gence as to excuse defendant.

yonflict in the evidence, there is sufficient evi. (Ed. Note.-For other cases, see Street Rail-dence to support the jury's finding of negliroads, Cent. Dig. § 268.]

gence on the part of the defendant, and we Appeal from Superior Court, Los Angeles shall assume that such negligence was duly County; Willis I. Morrison, Judge.

established. The defendant, in addition to OmaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

denying its own negligence, pleaded that the use reasonable diligence and ordinary care plaintiff did not exercise ordinary care to to avoid danger to himself, and that the fail. avoid being injured, and that her injuries ure to use such diligence and care is negliwere directly and proximately contributed to gence. They were also instructed: and caused by her own negligence. The ver "If you find from the evidence that the plaindict and judgment were in favor of the plaintiff negligently placed herself in a position of tiff, and the defendant appeals from the danger from which she was unable to escape, and

that the motorman of defendant's car which judgment, as well as from an order denying came in contact with her, used every effort in its motion for a new trial.

his power to avoid striking her after discover[1, 2] On behalf of appellant it is insisted ing her danger, then your verdict must be in

favor of defendant." that the evidence proves, without conflict, that

In Arbunich v. United Railroads, supra, the plaintiff was guilty of contributory negligence directly causing her injury, since it the appellant complained that the court err: is admitted by her own testimony and shown ed in modifying the following instruction re by all of the evidence in the case that she quested by the defendant: passed over from the north-bound track to law is that one riding or walking along or across

“In cases of this character the correct rule of the south-bound track without looking north- the tracks of a street railroad company must ward to see whether any car was approach- use reasonable care in the exercise of his faculing. In order to sustain this contention it ties of sight or hearing to watch or listen for

cars going in either direction." would be necessary to hold, as matter of law, that under the circumstances stated the The court gave that instruction in the fol. plaintiff was negligent in failing to look to lowing modified form: the north before she moved into the place

"In cases of this character the correct rule of danger. Whatever might be said as to of law is that one riding or walking along or

across the tracks of a street railroad company the rule governing the duty of a pedestrian must use reasonable care and precautions for about to cross a steam railroad or an inter- his own safety.” urban electric railroad in the country, it Discussing this matter, the District Court does not apply "in all its strictness” as of Appeal of the First District said: against pedestrians in crossing a city street. "It must be conceded that the cases cited by Under the circumstances of this case, the the appellant in support of the correctness as a plaintiff was required to use ordinary care, matter of law of the foregoing instruction in and that is the degree of care which people in that regard, and that, had the court refused

the form requested by it sustain its contention of ordinary prudent habits could reasonably to give said instruction or one similar to it in efbe expected to exercise under the circum- fect, its action in so refusing.would have been restances of a given case. We may say here,

versible error; but, in our opinion, the court

gave in substance and effect, although not in its as was said in Driscoll v. Cable Railway Co., requested detail, the defendant's instruction, and 97 Cal. 553, 567, 32 Pac. 591, 33 Am. St. Rep. that the language of the court, requiring per203, that considering all the evidence and sons walking across the tracks of a street railcircumstances in the case at bar, we cannot their own safety, would suggest to the minds

way to use reasonable care and precautions for say that the jury abused its power in hold- of the jurors as reasonable men that such care ing that the deceased was not guilty of con- and precaution would naturally consist in the tributory negligence. To same effect see Ar- exercise of their faculties of sight and hearing." bunich v. United Railroads, 28 Cal. App. 291, The Supreme Court denied a rehearing in 291, 152 Pac. 51.

that case. [3] It is claimed that the court erred in [4, 5] Error is predicated upon instructions refusing to give an instruction requested by 19, 25, and a part of 24, as given by the court the defendant as follows:

to the jury. No. 19 is as follows: "A person alighting from a car as the plaintiff must view the situation as it appeared to her

“In judging the conduct of the plaintiff, you did in this case, and intending to proceed across just prior to or at the time of the accident. . If the street behind the same, is charged with the she found herself suddenly put into peril, withduty of exercising ordinary care in looking and out having sufficient time to consider all the cirlistening for approaching cars, before proceeding cumstances, then she might be excusable for to attempt the crossing, and is charged likewise omitting some precautions or taking an immewith the duty of keeping up the exercise of ordi- diate choice under this disturbing influence, alnary care in looking and listening for approach- though, if her mind had been clear, she ought to ing danger, until the last moment before pass- have done otherwise. If she found herself in ing from a place of safety to one of danger. The imminent danger just prior to and at the time of omission of such ordinary care constitutes neg- the collision, and at that time, tried to escape ligence and if thereby a plaintiff contributes di- the peril, and in thus doing acted as an ordirectly or proximately to the injury ensuing, she narily prudent and reasonable person would cannot recover."

have acted under the same or similar circumThis instruction might well have been giv- stances and conditions, then you cannot find on

this account that she was guilty of contributory en, as it is a correct statement of the law. negligence. As the court has instructed you, We find, however, that in other instructions negligence is commensurate with the circumthe same rule was correctly stated in sufli- stances under investigation." ciently definite terms. The jury was told No. 25 is as follows: that the motorman in charge of a car has “If the plaintiff, at the time of the accident, the right to assume that a pedestrian on the may or may not have been guilty of such con

tributory negligence, as under the instructions street is in possession of all his faculties, un- of the court would 'relieve the defendant from less there is notice to the contrary, and will any liability which otherwise would have attach

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