The herald., 1898-12-11
RAILROAD DAMAGE SUIT
SUPREME COURT REvERSES A
JUDGMENT
ERRORS OF THE TRIAL COURT
Improper Instructions to Jury, Be-
traying Peculiar Views of Ven
tura Judge on Law

Mrs. Mary Green and her daughters re-
covered judgment for damages in the SUI
perior court of Ventura county some time
ago from the Southern Pacific company on
account of the death of George n. Green,
the husband and father, who was killed by
railway train of the defendant company.
Negligence on the part of the company's
Representatives was alleged and proved to
the satisfaction of the jury, but the COM
pany appealed from the judgment based
upon the verdict and from the order of the
court denying new trial.
In an opinion handed down by the SUI
preme court, which arrived in this city yes
terday, the judgment and order are reversed
and the cause is remanded for a new trial
The opinion was written by Justice Van
Fleet and was concurred in by Justices
Harrison and Garoutte. The grounds of
contributory negligence by deceased, urged
by appellant, as well as that of excessive
damages were not considered, since those
questions would not necessarily arise upon
another trial, and it was found that the
Judgment and order must be reversed be-
cause of errors of law occurring at the trial
OF the case, to the manifest prejudice of the
defendant
The trial court is held to have very clear
ly committed prejudicial errors in admitting
before THE jury, over defendants objection,
testimony to the effect that one of the
daughters of deceased, who was living with
him yat the time of his death, had no prop
erty of her own upon which to maintain her
self. This evidence had no pertinent or com
petent bearing upon the extent of injury
suffered by plaintiffs for which defendant
could be held responsible, and its only ef-
feet and inevitable tendency was undoubt-
edly to excite the sympathies of the jury and
improperly to influence their finding upon
the question of damages.
Such evidence, the court says, is never ad-
missible in a case of this character, for the
very simple reason that the extent of de-
fendant's responsibility for the results of his
negligence is not to be measured by the
condition as to affluence or poverty of the
injured party at the time of suffering the
injury, since that is condition for which
the defendant is in no way responsible.
The court is held also to have erred in
admitting for the purpose of impeachment
certain testimony as to a conversation oc-
curing between witnesses in September,
1895, to contradict statements Of one of the
persons testifying to another conversation
between the same parties during the trial
in March, 1896.
On the subject of the measure of damages,
the trial court charged the jury that they
had the right to take into consideration the
pecuniary loss if any, suffered by plaintiffs
by the death of Green, and also the relations
proved to have existed between the wife
and Green at the time of his death and the
damage, if any, sustained by her by the loss
of his support, society, comfort and care
Again, that the jury could consider what the
hn
his labor in his business or calling during
the residue of his life, and which would have
gone for the benefit of his heirs, and TO
assess such pecuniary damages as under all
the circumstances of the case might be
just.
These instructions are said to have in
correctly stated the rule or measure of dam
ages in such cases. The mistakes were not
cured by the instruction given at the request
of the defendant that they should confne
their verdict to the pecuniary damages sui
fered, since it cannot be told which instruc-
tion the jury followed.
At the request of plaintiffs, the court in
structed the jury that negligence of the de-
fendant might be inferred if it did not "ring
the bell or sound the whistle continuously
for the distance of eighty rods before reach
ing the crossing" This requirement is held
to impose greater burden on the defendant
than is sustained by the statute. Another
instruction tending to create the impression
that there was that in the age or condition
of the deceased which called for the exer-
else of greater care by defendant than in
the case of an adult person of less advanced
years is held not correctly to state the
law. Not having knowledge or reason to be-
lleve that Green was not possessed of or
dinary ability to care for himself, the COM
pany had the right to presume that he
possessed such ability. For the reasons given
the cause is remanded for new trial.