Needham v. San Francisco and San Jose Railroad Company (37 Cal. 409), expressly dissents from the doctrines of many of the cases cited by appellant; and the greater portion of the charge of the court below, to which objection is made, consists of extracts from the opinion of this Court in that case. The charge does not, in my judgment, amount to anything more than a " repudiation" of doctrines contended for in the court below and here, on the authority of cases which this Court has repudiated, and declared to be based on false reasoning.
OPINION By the Court:
The District Court refused the following instruction: " The deceased was required to exercise proper care, as well as the defendant and its servants, and if, by the exercise of such care, the deceased could have avoided the danger, he was guilty of negligence, and the plaintiff is not entitled to recover." The foregoing and other like instructions, asked for by the defendant, but refused at the trial, should have been given to the jury.
The court seems to have repudiated the rule that if deceased, by his own negligence, amounting to want of ordinary care, contributed to the injury complained of, the plaintiff was not entitled to recover. (Robinson v. W. P. R. R. Co. , 48 Cal. 424.)
From the circumstances of the case it is perfectly manifest that, if the negligence of the deceased contributed at all, it contributed directly and proximately to the injury. Needham v. San Jose, etc. (37 Cal. 409), therefore, does not apply.
Judgment reversed and cause remanded.