The record-union., 1891-02-28

ranch, were thrown ln'' IN the trade.
We think the general allegation of an
''ofier to rescind the entire contract of
sale and purchase" together with the
specific allegations, set out above, rem
dered the pIeadings both sufficient. In
the Judgment rendered the Wilson's were
required 10 account for or return all of the
property received by them. The ale
cations and findings OF fraud are fully
sustained by the evidence and the find
ings support the judgment.
Some objections are made to certain
rulings in the admission and exclusion of
evidence, but we find no error in the
record
The judgments and orders in both of
the cases are affirmed.
[F'iled February 10, 1871
Appeal from Superior Court, San Diego
County-George Puterbaugh, Judge.
For appellant, Deallin IL Story.
For respondent, Hunsaker & Britt.
DEPARTMENT ONE.
WILLIAM C. NAGLE,
Appellant.
CAL. SOUTHERN r. r. Co.,
Respondent.
The plaintiff brought this action to re-
cover damages for injuries caused him
by the alleged carclessness and negli-
gence Of the defendant. After the intro
duction of the plaintiffs evidence, a jury
having been waived, the defendant moved
for a nonsuit, which was granted. From
the judgment rendered in the premises,
and an order denying a new trial, this
appeal is taken.
The facts as they appear in the evil
dence of the plaintiff are that on Sun
day night April Is, 1888, he was trav-
cling on the defendants railroad; had
bought his ticket at San Diego for La
Jolla, station on that road. He had
been on this journey before in the day
tiue, and knew that at LA Joila there was
a platform 10 get out upon, and that it
had shed over it, and the ground was
level around the station at that point. In
going from san Diego to La Jolla before,
he knew the train had only made three
stops-at Old Town, Morena and La
Jolla. There We're five other persons
with him on the present trip, passengers
to- La Jolla. He did not know whether
there We're lights about La Joila and the
station at night. The train stopped some
time at Old Town 10 water or coal it
then stopped at MorenG. After this it
again stopped; he did, not know what
for" Everybody got astir in the car, and
"the men allowed this WAS Ia Jolla."
There was kind OF rush that is, Of the
men in the car who had TO get Off at La
Joila, thinking they We're there. The
man along side of the plaintiff stood up,
the latter sat still until the train came to
a stop. The man said: You had better
get out quick, the train don't stop a min
Ute" The plaintiff got out, and in doing
SO walked right OH, and Went down /,
canyon, as our car was standing on q
| trestle work. lie did not know how
long this was after leaving Morena, or
how far this place was from La Jolla.
lie thought he was walking down the
steps to the PLATFORM instead Of which
he Went down the canyon. lie fell ten
| or twelve feet; nobody else got out; he
Sprained his ankle and suffered other in
juries.
On cross-eXamination he did not
seem to be certain that the train did
stop at Morena or how long when the
whistle blew ne did not see the conductor,
the latter having taken up the plaintiffs
ticket before the train stopped; nor did
he see any Of the train men when lie
walked OFF. The whistle was blown
sharply, but how many times he did
not remember. On redirect exami-
nation he knew that the train stopped
twice after leaving San Diego before
reaching the trestle, once at Old Town
and once at Morena.
The plaintiff thought the distance from
where he walked off to La Jolla must
have been q couple of miles,"
His brother, also a witness for him
stated that he might be in the neighbor-
hood OF nlile;'' it may be a little more
or less; and that he had heard it was about
four miles between Morena and La Jolla
He and the other men in company
thought the stop was for La Jolla. There
had been no warning that they were GO
ing to stop, or that they must keep theil
seats. From habit of getting off at the
third stopping place we made the move
to get of there"
On cross-examination he thought
the distance to La Jolla from where
the plaintiff stepped off was more
than mile Tie heard no whistle, and
the train stopped on the trestle perhaps
minute. At The time the train stopped
neither conductor nor train men were in
the car.
Three of the company went out at one
door of the car and three at the other
Another witness for plaintiff testified
that the night was rather dark; that the
third stop which they supposed to be La
Jolia, was about midway between Mo-
rena ana La Jolla; thatis, about two miles
! from either place. He did not know
what the train stopped for at the third
! point; it was mo stopping place at all
it was just simply stopping place for the
train" He got I'D to get off at a differ
ent door from the plaintiff, but did not
get oil. lie thought it pretty hard to
look tie length of the car and tell
the parties and recognize them" He
did moi think the train stopped at the
treStle over fifteen seconds. 1t was
just about time enough to come to a
standStiIl and move on. 1t only came
to standstill and moved" He '.iudged''
the trestle was about midway between
Morena and La Jolla. He heard none OF
the train men say it was La Jolla there
was no station called or mentioned by
any of them.
Another witness swore that the
train stopped ut Old Town, then at an
| other little station; latter that they
stopped where there had been a washout;
| they had been working there, and they
never .hollered' for a station; they kind
of checked up there. 1t was dark; we
started TO get off. Mr.. Nagle (the plain
tiff got oil, and when he got off he fell -
| They started SO quick, that he having
/ some bundles to gather up, did not have
time oget OFF.
firom all this. it appears that the
cause of the stoppage of the train was
Il proper one, that due care might be
taken of the whole train and all the pas
sengers on it. AS the train was approach
| ing wastout where danger might exist,
| it was the duty of the conductor and
trainmen to be at their several stations
at the brakes and on the lookout-to see
! that there was no injury likely to result
| in passing this dangerous spot con the
road. They could not perform this in the
short time of the stoppage, and also go
| through the cars to warn passengers not
to get out. For this stoppage lasted al
| the most a minute, or, as a witness
said, nos more than fifteen seconds"
If they had acted as the plaintiff
seems to contend they should, an acci-
dent had happened TO the train, and inju-
ries been received by the passengers, then
the negligence of the defendant would
have been apparent. 1t was evidently
Ithe habit, that OF making the third stop at
La Jolla, that induced the plaintiff and
his companions to rush for the door and
the former to jump out so quickly as
To affnrnlr Mt to lnnl, b6,r1f and