Hawkins v. Front Street Cable Railway Co.

Scott, J.

(dissenting). — I cannot agree with the conclusion reached by the majority in this case as to the ground upon which the judgment is reversed, that the right to a recovery was not limited to cases where the injury was due to some act or omission of the company’s in the instruction which was given as to the presumption of negligence arising in the case of injury. In this case the instruction could only have been injurious as bearing upon the fact that the injury might have been causedjsolely by the negligence of the driver of the express wagon in not getting out of the way, or in turning off so abruptly. There was no question *602 as to the respondent having been hurt in this collision, and I think this general charge complained of was remedied, explained and limited in a subsequent instruction wherein the court charged the jury that:

“It is claimed in this case by the plaintiffs that the injuries received by Marie Hawkins were suffered from the consequences of a collision which took place between the cable car of the defendant and a wagon driven by one Keller, who is a witness in this cause. In order to enable the plaintiffs to recover it is not sufficient to show merely that the collision occurred and that the plaintiff Marie Hawkins was injured in consequence of it. In order to make the defendant liable for such injuries it must farther appear by a preponderance of the evidence that the collision resulted from the negligence of the defendant or its employes. And I instruct you further that, if you should find from the evidence that the collision was caused by the negligence or carelessness of the man who was driving the wagon, and not by the negligence or carelessness of the defendant, then the person driving or owning the wagon would be liable for such injuries, and it would be your duty in such case to find for the defendant in this case.”

Here the jury were specially told that the plaintiff could only recover in case the defendant was negligent, and that mere proof of the injury was not sufficient, and it seems to me that the jury could only have understood that the right to a recovery was so limited.

I do not understand that any question was raised over the testimony relating to the death of the child, except that its death was claimed to have been too remote to warrant any recovery of damages for anything resulting from it, nor do I understand that the judgment is reversed upon any such ground, so I do not desire to examine or comment upon the evidence in this respect. I think the judgment should have been affirmed.