tified that he had crossed the track at this place often before; that at all other times, when he saw a train approaching, he had always heard them blow a whistle or ring a bell; that on the day of the accident, as he approached the crossing, he looked and listened for a train, but saw and heard none; that he did not stop, but drove on the track; that he first knew of the train when it whistled, and before he could get off the track his wagon was struck. The evidence was conflicting as to how far one could see a train from the road. It was shown that on that day no sound of the train could be heard until the whistle was blown for the crossing, but why such was the case did not appear. Held that, as a matter of law, plaintiff could not be deemed guilty of contributory negligence. STILES and HOYT, JJ., dissenting.

Appeal from superior court, King county; T. J. HUMES, Judge.

Action by Frank Ladouceur against the Northern Pacific Railroad Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

Kilgen, Kelleher & Emory, for appellant. Mitchell, Ashton & Chapman and Andrew F. Burleigh, for respondent.

SCOTT, J. The appellant sued the respondent for damages for injuries caused by the negligence of the railroad company. At the close of plaintiff's testimony the court granted a motion for a nonsuit on the ground that his evidence showed that he was negligent, and that his negligence contributed to the injury. The plaintiff was a youth 21 years of age, and at the time he was injured was driving a team and wagon on a street in the city of Seattle, and was injured by a collision at the public crossing with the train of defendant, on the afternoon of August 8, 1890. The street was a much traveled public highway. The railroad runs north and south, and the street, running northwest and southeast, crosses it at a sharp angle. The train and plaintiff were going in the same general northerly direction towards the city. There was testimony to show that the plaintiff, at the close of his day's work, between 5 and 6 o'clock in the afternoon, left a brickyard about half a mile from the crossing, and from there was driving home towards the crossing at a slow walk. On his wagon was a low woodrack, 12 feet long. He was seated on the righthand side of the woodrack, between the two wheels,-the customary place for the driver of a wagon carrying that kind of a rack, so that he could conveniently attend to the brake. Commencing at a point about 65 feet from the track at the crossing was a decline extending down to the crossing. Before this point 65 feet from the track is reached, the view of the track to the south was somewhat shut off by buildings along it, and the track to the north of the crossing can be seen for only a few feet. After beginning the descent of this decline, the view, both to the south and to the north, was very limited, on account of the embankments, and the fences of the railroad, and weeds and bushes growing along the side of the railroad. It appears by the testimony that it was a freight train, behind time, and running at a high rate of speed, which caused the injury; that no whistle was blown, or bell

rung, until it was right at the crossing. The speed of the train was so great as to excite comment from persons who saw it going. Testimony to this effect was admitted without objection. The failure to blow the whistle until within a few feet of the crossing was also noticed by certain employes of the company, who were section hands, working in the vicinity, and was commented on by them before it was known that any one had been injured. The testimony, as a whole, if true, showed culpable negligence on the part of the employes of the railroad company in charge of the train in approaching so dangerous a crossing under such a high rate of speed, and especially in not seasonably giving warning to people who might be traveling in the vicinity, by blowing the whistle or ringing the bell.

99

The respondent contends that the plaintiff, before he attempted to cross the track, should have stopped to listen for the sound of an approaching train; and, failing to have done so, he was guilty of contributory negligence, and cannot recover. This question was twice before the supreme court of the territory in the case of Railroad Co. v. Holmes, 3 Wash. T. 202, 14 Pac. Rep. 688; 3 Wash. T. 543, 18 Pac. Rep. 76. When first before the court, it was held that it was the duty of the party injured to have stopped. A petition for a rehearing was granted, and later, there having been a change of the members of the court meanwhile, the question was decided otherwise under the facts of that case. There were dissenting opinions upon both hearings. But in the opin. ion last rendered the court says: "Thatit may or may not be a party's duty to stop, look, and listen is dependent on the status of each case. It was conceded that there might be cases where it would be a party's duty to stop and listen, and I am well satisfied that such should be the rule under some circumstances. As to this particular case, there was testimony to show that, extending from the top of this incline, which was 65 feet distant from the track, was a strip of several hundred feet in length, where the road was nearly level; and there was a conflict in the testimony as to how far a train could have been seen from this level street, coining from the south, some of the witnesses placing the distance at a mile or so, others at a few hundred feet, and some saying it could be seen only a little ways. It seems the plaintiff did not look to the south while passing along this strip, nor until he started down the incline, and here again the testimony was conflicting as to how far a train could be seen coming from the south. There is some confusion also because some of the witnesses spoke of the distance the track could be seen before the view was shut off by shrubbery, etc. train, being higher than the track, could have been seen for some distance further. But there was testimony to show that from no point along this incline could the train be seen for more than two or three hundred feet therefrom. The testimony of the plaintiff shows that he had crossed the railroad at this point a good many times within the three months immediate

The

ly preceding the accident; that whenever he had seen a train in that vicinity before, he had always heard them ring a bell, or blow a whistle, when they were approaching, and before they got close to the crossing; that he looked to the south for a train while going down the incline, but that his view was obstructed by a passing wagon; that he listened for one, but did not hear any, and that he did not stop; that he looked to the south again when he was about 20 feet from the crossing, and could see about 175 feet along it only, and that he could not see, and did not hear, any train; that he then looked to the north, and was just about to look to the south again, when the engine gave the first alarm by a danger whistle; that when the whistle was first sounded the horses were across the track, the wagon was half way across it, and he was just over the middle of the track; that he immediately struck the horses, and he was just on the west rail of the track, when the engine struck the rear end of the wagon; that he was knocked quite a distance, had one of his legs cut off, and received other injuries.

While the testimony is uncertain and contradictory in some important particulars, yet, as it appears. it is a close question whether the plaintiff can escape the charge of contributory negligence. If he could have seen along the track for a long distance while on the level place before going down the incline, he certainly knew it, and should have looked, especially as he could not see an approaching train from the southward for any great distance from the crossing while going down the incline; and he must have known this also, as his testimony shows he was entirely familiar with the situation of the track and street in the vicinity. His counsel claims that the plaintiff did look to the southward for a train while on the level space, but we fail to find any testimony to that effect in the record. On the other hand, if he could not have seen along the track but a short distance, so there would have been no object in looking while on this level place, he certainly should have stopped and listened before crossing the track, unless the situation was such that he could not have heard a train any material distance therefrom if he had stopped. If there is ever a case where, under other ordinary circumstances, a man should stop and listen, it would be where he was unable to see the track, or an approaching train, for more than a very short distance, and had been so unable to see for some time before reaching the crossing. But we do not think we should say as a matter of law that the plaintiff's negligence, if he was negligent under the circumstances, contributed to the injury. The testimony is contradictory as to whether he could have seen the train from the level space, so the question as to whether he was negligent in not looking while on that place is to be determined upon the facts, which are for the jury to find. As to his negligence in not stopping to listen before attempting to cross, it is doubtful from the testimony whether he would or could have heard the train had he done so. One Bed

ford, coming from the opposite direction with a team and wagon, crossed the track just before the plaintiff reached it. He testified that he passed the plaintiff about 40 feet from the track; that he was driving pretty fast, and said nothing to the plaintiff about the train as he passed him. His horses seem to have been somewhat unmanageable. The testimony shows that while right on the track a view could be obtained along it to the southward for nearly a mile. Bedford says, as he crossed the track he saw the train coming, then about a half of a mile away, but that he could not hear any sound from it. It may be said that he might have heard it but for the noise of his own team and wagon, but one Mrs. Stender testified that she stood in the door of her house a short distance from the crossing, where a view could be obtained of the track to the southward for some distance; that she saw the train coming a half mile or nore away, but could not hear any sound from it, and did not hear any until it whistled a few feet from the crossing. It was not shown that this witness was deaf, or that there was any unusual noise being made which prevented her from hearing. Other witnesses, who were in the vicinity at the time, also testified that they could not hear the train until it whistled, and that a train could not be heard for any considerable distance at that place unless the whistle was blown or bell rung; although why such was the case was not shown. What it was that prevented the rumbling of this train from being heard does not appear upon either the direct or cross examination of the witnesses; and why the noise which it must have made could not have been heard while the train was yet a sufficient distance from the crossing, to have given a timely warning, is to us inexplicable, unless it was due to the fact that this was a planked street, or, more properly, a bridge, for some distance at this crossing, and that a good many teams were passing over it constantly. Whatever the noise was that prevented the hearing, if it was temporary only, the plaintiff should have stopped, and waited a reasonable time for it to subside, if the situation was such that he could not and had not been able to see effectually. this noise may have been practically continual, and of sufficient volume to prevent persons at that point from hearing a train unless the bell was rung or the whistle blown; and there is testimony to the effect that, had the proper and customary signals been given, the same could have been heard without stopping. If the teams were so numerous as to make such a continual noise as would prevent the ordinary rumbling noise of the train from being heard while yet at a safe distance, so that it could be avoided, the plaintiff was not called upon to stop or wait at all, as he could not have stopped the other teams so that he might listen. But, whatever the inability to hear was due to, witnesses testified that the train could not be heard unless the signals aforesaid were given; and, if the plaintiff could not have heard the train if he had stopped, it cannot well be contended that he was negli

But

gent in not stopping. In any event, his failure to do so could not have contributed to the injury, unless it must necessarily follow that, if he had stopped, the train would have passed him, or come in sight before he could have started up, or have reached the crossing. That this would have been the case looks plausible, yet I think it was a question of fact for the jury. It was only necessary for him to stop long enough to listen, if necessary to stop at all; and it is a question of fact as to how long a time would have been required for this purpose. The jury might have found that stopping for a very short time was sufficient to enable one to listen, and that the plaintiff might have done so, and then, not hearing the train, have started up quick enough to have received the injury. As it was, it happened that the train struck the hind end of his wagon, and it might possibly have struck the front end, or his team, in the other case, and have caused him to be injured.

The questions going to the plaintiff's negligence are so inseparably woven with the facts upon which the testimony was conflicting that the case should have gone to the jury. Without undertaking to comment on the many authorities relating to the granting of nonsuits, it is sufficient to say that the rule as laid down in Schofield v. Railway Co., 114 U. S. 618, 5 Sup. Ct. Rep. 1125, is a good one. Mr. Justice BLATCHFORD says: "It is the settled law of this court that when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant," citing many authorities; and the same would, of course, warrant a nonsuit under our practice. But this case does not come within that rule, and we reverse the judgment, and remand the cause for trial.

ANDERS, C. J. I am of the opinion that the testimony of the plaintiff, appearing in the record, if true, shows such a state of facts as would not justify the court in holding, as a conclusion of law, that he was guilty of such negligence as would preclude him from recovering in this action. And whether the testimony was true or not was a question for the determination of the jury. I therefore concur in the foregoing opinion of Judge ScOTT that the motion for a nonsuit should not have been granted, and that the judgment should be reversed.

DUNBAR, J. I concur in the result, because from the testimony I am not satisfied that the plaintiff was guilty of contributory negligence.

(April 15, 1892.)

STILES, J., (dissenting.) With all due deference for the result deduced by my brethren from the facts of this case, and to the argument in the course of which they reach it, I am constrained to say that, in my judgment, the logical result of the arv.29p.no.13-60

gument as well as the facts should be an affirmance of the judgment of the superior court sustaining the motion for a nonsuit, rather that a reversal. It is clear from the evidence that the appellant was grossly in fault. He drove his team at a pace not exceeding two miles an hour along a road parallel to, and not more than 30feet from, the railroad track, with his face away from the track, and could not at any time, when he was within 30 to 100 feet of the crossing, have looked to the southward, whence the train which injured him came. It was said that the train was going very fast, perhaps at the rate of 30miles an hour. If so, while appellant was traveling 176 feet the train would move a half a mile, and when he was within 90 feet of the crossing the train was within a quarter of a mile from him. Every witness admits that 90 feet from the crossing placed appellant on the top of the little hill alongside of and within 30 feet from the track, and that the train could easily have been seen from a quarter to a half a mile to the south of that point. Had he turned his head in that direction at any time, he must have seen it, even if he could not hear it, which is almost an impossible supposition, as a train of 18 loaded freight cars traveling at 30 miles an hour must necessarily make considerable noise. So far as obstructions are concerned, without any testimony at all the facts are made perfectly plain by two excellent photographs, which the appellant himself put in evidence. The testimony of the photographer who took them, and of the engineer who measured the ground, shows that they were taken from the one point where there was any obstruction of the view to the south, and these photographs show that the only obstructions were two telegraph poles, and a small sign board nailed on one of them, at a distance of not exceeding 30 feet from the point where the photograph was taken. The photograph shows the road, and all the ascent there is on it, the railroad track southward, the place where the accident occurred, and all the obstructions; and it is, to my mind, too clear to need any argument that no man in his senses, who chose to use either his eyes or ears, need at that point be run down by a train approaching from the south, no matter how fast it was running, unless he had an unmanageable team, which is confessedly not the case here. Further than that, it is apparent that, if appellant, when within the line of obstructions caused by the poles, and as near as 10 or 15 feet from the railroad track, had then looked to the southward, when the train was within 300 feet of him, he might have easily turned his entirely manageable, team to the right, and have thus escaped. It is perfectly clear that he sat still, with his face to the north and the east all the time, and entirely omitted to take any care for his own safety until the train was actually upon him. It is against the policy which assumes to have some regard for the public who travel, and are employed upon railroad trains, as well as for those who cross their tracks, that every man should use reasonable diligence in protecting himself from injury, as well

as avoiding possible loss of life and property by a collision with him; and the superior court is to be commended in having stopped the case when it did, thus avoiding what, in the event of another trial, must be useless waste of time and money by both parties. That certain witnesses made statements which, taken entirely alone, constituted a scintilla of evidence for the plaintiff, should not outweigh the burden of the case as a whole.

HOYT, J., concurs.

(94 Cal. 540)

WILLIAMS V. DENNISON. (No. 13,987.) (Supreme Court of California. May 16, 1892.) PLEADING-REPLY-APPEAL-ASSIGNMENTS OF ERROR-EVIDEnce.

1. Under Code Civil Proc. § 462, which declares that the statement of any new matter in the answer, in avoidance or constituting a defense, "must on the trial be deemed controverted by the opposite party, " in an action for money had and received, where defendant pleaded the statute of limitations, the jury could consider any question of fraud on the part of defendant which would take the case out of such statute, even though the complaint contained no averment as to those matters.

2. A specification by defendant that "the evidence shows that all amounts of money collected by defendant, and all amounts of cash which had been paid him by plaintiff, were more than two years before the commencement of this action, and therefore barred by the statute of limitations, except the $70 paid by R.," was insufficient to raise the question on appeal as to whether there was any evidence of fraud on his part.

3. Where a witness for plaintiff had produced a summarized statement of the account from plaintiff's books, it was not error to admit a statement as to the footings made by plaintiff's attorney, in answer to a question by one of the jurors.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Action by C. B. Williams against E. F. Dennison for money had and received. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

B. McKinne, for appellant. J. C. Bates, for respondent.

BELCHER, C. This is an action for money had and received. The complaint was filed September 12, 1889, and it alleged that the money sued for-$1,131.73-was received by the defendant for the use and benefit of the plaintiff on the 28th day of October, 1887, at the city and county of San Francisco. The answer denied all the material averments of the complaint, and alleged that the cause of action was barred by the statute of limitations. The case was tried before a jury, and the verdict and judgment were in favor of the plaintiff for the sum of $581.67. From this judgment, and an order denying a new trial, the defendant appeals.

The principal point made for a reversal is that all the items of plaintiff's demand, except $70, were received by defendant more than two years before the commencement of the action, and hence their

recovery was barred by the statute. It appears that in 1887 the plaintiff was a street contractor, and the defendant was employed by him to solicit contracts and to collect the moneys due thereon, and that he was to receive for his services a certain percentage of the contract prices. Under this arrangement defendant proceeded to get contracts and to make col· lections until the latter part of September, 1887. At the trial plaintiff offered in evidence several statements made by defendant of his collections, but attached to them were no dates showing when any of the collections were made. Plaintiff also introduced evidence tending to show that defendant collected and failed to account for more money, after deducting his commissions, than was found by the verdict to be due from him. When the plaintiff rested, the defendant first introduced in evidence a bill of particulars furnished by the plaintiff, commencing as follows: "The following are the items of the account or indebtedness alleged in plaintiff's complaint in above-entitled action. All the amounts received by defendant were received by him at the city and county of San Francisco within two years prior to the commencement of said action." The items of cash received were then stated, but without dates, aggregating $1.131.73, after deducting the credits. Defendant also offered in evidence certain pages of his ledger and block book, “showing the several amounts collected by him under these several contracts, the dates of each payment, and the names of the persons from whom he collected." He was then sworn as a witness in his own behalf, and testified, among other things, that he did not receive all the items of cash charged against him in the bill of particulars, and that "all the amounts collected by me (except the seventy dollars collected from Rose Auerbach) were collected more than two years before the commencement of this action; all the cash advanced by plaintiff to me was advanced more than two years before the commencement of this action." When the case was submitted, the court gave to the jury all the instructions asked by defendant, and among them the following: "All amounts collected by defendant more than two years prior to September 12, 1889, the commencement of this action, which were known by plaintiff to have been collected by defendant, or which he had the opportunity of ascertaining, and were not ascertained by him, or unless the collection of said amounts were fraudulently concealed by the defendant, are barred by the statute of limitations. Should you find that some of said accounts were collected within less than two years prior to 12th day of September, 1889, then your verdict should be only for the amounts so collected. Facts constituting fraud must be proved. If the jury believe from the evidence that defendant was the agent of plaintiff in the collection of any moneys claimed in the complaint, and plaintiff has failed to prove that defendant made any concealment of facts, or misrepresentations, or deceit, or other facts constituting a fraud as to said collections, and

for all sums that plaintiff has failed to prove were collected within two years before said 12th day of September, 1889, then said sums are barred by the statute of limitations." And when the jury retired "the books, contents, and exhibits respective parties were, by consent of respective parties, submitted to the jury, and taken by them into the jury room.

of

It is now suggested that the jury had no right to consider any question of fraud, concealment, or deceit on the part of defendant, for the reason that the complaint contained no averment as to those matters. But no such averments were necessary. Under our statute "the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must on the trial be deemed controverted by the opposite party," (Code Civil Proc. § 462;) and any proper evidence is admissible to meet and overcome that defense, (Curtiss v. Sprague, 49 Cal. 301; Water Co. v. Raynor, 57 Cal. 538.) It is further suggested that there was no evidence of any fraud on the part of the defendant, and hence that the verdict was not justified. The only specification as to the sufficiency of the evidence in this regard is as follows: "The evidence shows that all amounts of moneys collected by defendant, and all amounts of cash which had been paid him by plaintiff, were more than two years before the commencement of this action, and therefore barred by the statute of limitations, except the $70 paid by Rose Auerbach. This specification is clearly not sufficient to raise the question suggested, and it therefore cannot be considered here. It follows that the judgment cannot be reversed on the ground that the verdict was not justified by the evidence.

The only other point made by appellant is that the court erred in the admission of certain evidence. It appears that one F. W. Williams was a witness for plaintiff, and produced a synopsis or summarized statement of the account from plaintiff's books. That synopsis is not brought up in the record, and the only matter referred to as erroneously admitted was a statement made as to the footings by plaintiff's attorney in answer to a question by one of the jurors. In this we see no reversible error. We advise the judgment and order be affirmed.

We concur: TEMPLE, C.; Vanclief, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(94 Cal. 533)

PLUMMER V. SHELDON et al. (No. 14,493.) (Supreme Court of California. May 16, 1892.) HIGHWAYS-DEDICATION-WHAT CONSTITUTES.

A road was laid out along what was presumed to be the western boundary of a patent by persons supposing that they were acting under the authority of the board of county supervisors; and, although the proceedings were insufficient to constitute it a public road, its use as such was acquiesced in until the true line of the patent was found to be further west. Thereupon the owners of the land included in the patent moved their fences and inclosed the road, but by mu

Commissioners' decision. Department 2. Appeal from superior court, Sacramento county; W. C. VAN FLEET, Judge.

Action by A. M. Plummer against W. C. Sheldon, A. Mull, and Sarah W. Belcher. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. A. Blanchard and A. L. Hart, for appellants. Elwood Bruner and F. D. Ryan, for respondent.

FOOTE, C. The plaintiff, a road overseer in the county of Sacramento, brought a separate action against each of the appellants here for the obstruction of a public road. For convenience, the appeals are to be heard upon a single consolidated statement on motion for a new trial and the judgment roll of each case. The court below found in favor of the plaintiff in each case, and from the judgment therein rendered, and orders denying a new trial, these appeals are prosecuted. The determination of one involves that of the others. The main questions raised for a reversal of the judgments and orders are that the evidence does not support the findings; and that, even if the findings are supported by the evidence, they do not justify the judgment. The facts, as set out in the findings, are about these: About 25 years before these actions were brought there was a certain road in Sac. ramento county called the "Grant Line Road," which was supposed to run along the base line of a grant of land from the Mexican government, and patented by the government of the United States to one Jared Sheldon. The parties who are defendants here owned land included in this grant, and along the westerly boundary of the grant this road ran and was much traveled. It was a thoroughfare commencing at the upper Stockton road and followed thence the line of the grant, as first surveyed by one Cleal, to a public road called the "Jackson Road," which ran from the city of Sacramento to the town of Jackson, in Amador county. This "Grant Line Road" was 60 feet wide, and was laid out on the ground, by throwing up a furrow on each side thereof, and harrowing in the center, and was plainly and visibly marked upon the ground throughout its course. It was laid out by those who supposed they were acting under the authority of the board of supervisors of the county, although the proceedings taken, as shown in the evidence, do not appear to have been entirely correct or sufficient to constitute it a public road. From the time it was so lail out it was traveled by the public, and constituted for a period of 10 or 12 years the main line of travel between the southeastern or lower part of the county of Sacramento and Jackson and Placerville, and was commonly called and known as the "Grant Line Road." After that time the