The herald., 1896-12-01
A STRONG DISSENT.
Entered by Justice Temple Of the Su-
preme Court.


preme Court
The suit of Amanda p Everett ct al.
respondents, vs. Los Angeles Console
dated Electric Railway company. an
pellant, has passed through another
phase OF it's varied career, and the SUI
preme court, in bank have the order and
judgment of the lower court.
The case was first carried on appeal to
the supreme court in the fall of last year.
The Judgment and order We're reversed
on January 9, 1896, and a petition for a
rehearing filed on January 21st. The
former judgment was set aside and a re-
hearing ordered on February Sth, and
now the former order of the court, and
for the reasons given i'm the previous
opinion, Is confirmed. This later opin-
ion consists of only three lines Of type
written matter. but dissenting opinion
has been written by Justice Temple, in
which Chief Justice Beatty and Justice
Henshaw concur.
The main question presented on ap-
peal was whether the supreme court
can say as mater of law that the de-
ceased was guilty of negligence which
contributed s2roximately to his injury
in the face of the verdict of the Jury,
which is in favor of the plaintiffs. who
are heirs at law Of the deceased.
This is not a question as to what the
evidence taken as whole may be con-
sidered fairly to establish, or whether
the facts which we think plainly estab-
lishedr by the evidence show such negli-
gence on the part of the deceased, but
whether the conclusion of the jury could
be nationally drawn from the evidence
And this, says Justice Temple, must be
determined also, in view of the exclusive
province of the jury to pass upon the
credibility Of the witnesses
The facts were as follows: Deceased
was an experienced bicycle rider, about
forty years old, in the possession of all
his faculties and familiar with the oper-
alton of the street railway; at least he
lived in the vicinity and had often been
on this styeet.
Defendant had two tracks on McClin-
took avenue, there being seven and a
half feet between them. 1t was in the
suburbs of Los Angeles, and the street
was unfinished. Outside of the two
tracks the ground was higher and too
rough for travel on foot or on bicycles.
The rails were raised some two inches
above the roadbed.
Just before the accident deceased was
seen on the north bound track, going
south. He was going at the rate of six
miles an hour On the south bound
| track car was following at the rate
of ten miles an hour. At that time car
was approaching on the north bound
| track, and, although it was not so near
as the car which was approaching from
| behind deceased turned, evidently to
| avoid it, to the south bound track, and
| in front of the nearer car on that track.
At about a block and a half away the
mOtoman of the south bound car rang
his bell good and hard" to warn de-
ceased of his danger The south bound
train was not SO near as the north bound
train, but its passengers called to de-
ceased and made signs to him, trying to
warn him of his danger The north
bound train had not passed when the ac-
cident occurred, but stopped on the hap
pening of the accident, something like
100 feet away. The motorman testified
that he reversed the current 80 or SO feet
before the car struck the deceased.
but several witnesses testified that the
speed was not slackened at all until it
struck the deceased, and some that the
current was reversed some five feet
away. There was testimony to the ef-
feet that the car moved from so to 60 feet
before it was stopped after the accident
Upon this question of distance there was
conflict.
Il have carefl6ly examined the evil
dence," says Justice Temple, land be-
lieve the conclusion reached by the jury
is fully warranted by a preponderance
OF the evidence. And IL we apply the
rule which has always heretofore OBJ
tanned in such cases, am unable to un-
derstand how anyone can reach the op-
posite view. In my opinion it is plain
that the mOtorman must have actually
known that deceased was unheedine
long enough before the injury to have
slackened his car sufficiently to have
prevented the injury To do this II
would have only been necessary to re-
duce the speed to six miles per hour
from ten miles per hour. In fact. 1 can
not doubt that had the motorman made
an honest effort to stop the car when
five feet away, Everett would not have
been injured. Even from that point the
car ran twelve and one-half feet befors
it struck Everett and of course an soon
as the speed diminished the discrepancy
of speed would be less. If these cars can
not be so handled 1t Is criminal to allow
their use on the streets. 1 think 1t a
matter of common knowledge that they
can be.
Nov, could this court say that the
jury could not reasonably conclude from
this evidence, that 1T some point of time.
when the injury could have been avoided
the motorman knew or should have
known that Everett was unheeding and
that injury was likely to result unless he
checked his speed? Can we say, s mat
ter of law, that such was not the fact?
IF these views be correct, they fur
AAASAA q SOiHpiCtC duSWcr 10 the COnLen-
tion of appellant that the motorman WIS
guilty Of no negligence, and that the ac-
cident was due wholly to the negligence
Of the deceased. Conceding the gross
negligence Of Everett, the motorman
knew, as we must also concede, that he
was ignorant of the danger, and after
such knowledge the motorman could by
the use of ordinary diligence have pre-
vented the injury, defendant Is liable.
I'm conclusion, I wish to say that in
my opinion, If a man of ordinary pru-
dence in the place of the motorman
would have seen that perhaps Everett
was not aware of his danger, and that
injury might occur unless he stopped his
car, then it was his duty to stop and
make sure.
Il do not think the Jury were misled to
the injury of defendant by any instruc-
tions given, and in my opinion the Jury
was fully instructed upon all points ON
which instructions were required by de-
fendant."
POLICE COURT CALENDAR.
Mcneil Pleads Guilty-An Indecent