If the plaintiff is guilty of negligence in going upon arailroad track, yet the company are bound to exercise reasonable care and diligence in the use of their road; and if for want of that care the plaintiff is injured, the company is liable. (Richmond v. Sacramento R. R. Co. 18 Cal. 351; Needham v. S. F. & S. J. R. R. Co. 37 Cal. 409.) It is not every case of negligence of the plaintiff which will preclude him for recovering for an injury occasioned by the negligence of the defendant. (Brown v. N.Y. C. R. R. Co. 31 Barb. 385.) Neither do we agree to the proposition that in such cases the burden of proof is always upon the plaintiff--that is, that the plaintiff must show affirmatively that his own conduct on the occasion of the injury was cautious and prudent. This may be inferred from the circumstances in connection with the ordinary habits, conduct and motives of men; and the character of the defendant's negligence may be such as prima facie to prove the whole issue; and also the known disposition of men heedlessly to subject themselves to difficulty, is to be taken into consideration in determining the question. (Johnson v. The Hudson R. R. Co. 20 N.Y. 65; Shearman and Redfield on Negligence, Secs. 43-44.) Butwe can admit, for the sake of the argument, and without prejudice to respondent's theory of this case the rule of law, on that point, to be as stated by appellant's counsel. The plaintiff's evidence brought her entirely within the rule, and she gave positive, direct and affirmative proof touching her own conduct as well as that of the servants of the corporation on the occasion of the accident.
It was the duty of the engineer, or persons in charge of the locomotive, to look out at the crossing to see if there was any danger of a collision with any one about to cross the track. (Wilds v. The Hudson River Railroad Co. 33 Barb. 503.) We are aware that it is comparatively easy for counsel to point out now, by the light of after events, and sitting in tranquil safety, what would have been wise for the plaintiff to have done then; but most persons under such circumstances of instant, threatening peril, act rather from instinct than cool judgment and calm reasoning. It would be a hard rule indeed if the law demanded any such impossibility as judicious and wise conduct under such circumstances; and if, as we claim, the defendant's negligence had placed her in this imminent peril, then the defendant is answerable for the consequences, though the plaintiff did not exercise the soundest discretion in her efforts to escape. (Eldridge v. Long Island R. R. Co. 1 Sand. S.C. R. 89; 13 Peters, 181; Collins v. Albany & S. R. R. Co. 12 Barb. 492.)
Instruction number four, which was given at plaintiff's request, states the rule of law correctly, and as laid down by this Court, in Needham v. S. F. & S. J. R. R. Co. (37 Cal. 409; Shearman and Redfield on Negligence, Sec. 28.) The instruction was applicable to the case because it was clearly proved at the trial that the persons in charge of the locomotive kept no lookout at the street crossing, as they were required to do. Had they exercised reasonable care and diligence in that respect alone, they could have avoided the accident. For want of such reasonable diligence on the part of the company, the plaintiff was put in imminent peril, and was not in fault in attempting to cross the track; hence her right to recover is not affected, even if she did contribute to her injury. Under such circumstances the instruction was proper, and could not have misled the jury.
The measure of damages in such actionsis somewhat vague and uncertain, hence it is that the Court in the case of Coleman v. Southwick (9 John. N.Y. 44,) declared that the damages must be so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable, and such as manifestly show the jury to have been actuated by passion and prejudice. In short, the damages must be flagrantly outrageous and extravagant, or the Court cannot undertake to draw the line, for they have no standard by which to ascertain the excess.
In an action to recover damages for injuries to person or property, it is not necessary to aver in the complaint that the acts complained of did not occur through the negligence or carelessness of the plaintiff. In support of this point we refer the Court to the following authorities: May v. Hanson, 5 Cal. 560; Finn v. Vallejo Street Wharf, 7 Cal. 253; Richmond v. S. V. R. R. Co. 18 Cal. 351; Gay v. Winter, 34 Cal. 153; Needham v. S. F. & S. J. R. R. Co. 37 Cal. 409; Johnson v. The Hudson R. R. Co. 20 N.Y. 73; Smith v. Eastern R. R. Co. 35 N.H. 356; Gough v. Bryan, 2 Mees. & Walsh, 770; Bridge v. Grand Junct, R. R. Co. 3 Mees. & Walsh, 244; Taylor v. Day, 16 Vt. 566; Wolf v. Supervisors of Richmond, 11 Abb. Pr. 270.
In the cases cited in the fifth and seventh Cal. Rep. this Court held that " it is not incumbent on the plaintiff to prove the exercise, by him, of ordinary care to avoid the injury, but the want of it upon the part of the plaintiff lies on the defendant; that he who avers a fact in excuse for his own misfeasance must prove it." See also Beatty v. Gilmore (16 Penn. 463).
JUDGES: McKinstry, J.
OPINION
McKINSTRY, Judge
The defendant filed a petition for a rehearing, and the following opinion was delivered, denying the application.
By the Court:
The point presented in the petition for rehearing is that there is no averment in the complaint that the plaintiff sustained the injury in question without any fault on her part.
It would seem that this omission has been held to render the pleading defective in Indiana, Illinois and Maine. (Michigan, etc., R. R. Co. v. N.Y. R. Co. 29 Ind. 528; The Chicago, etc. R. R. Co. v. Hazard, 26 Ill. 373; Buzzell v. Laconia Man. Co. 48 Maine, 113.)
We think the proposition that negligence on the part of the plaintiff is a matter of defense, to be proved affirmatively by the defendant, unless it can be inferred from circumstances proved by the plaintiff, is sustained by the better reason. (Shearman and Redfield on Negligence, Secs. 43, 44; Penn. Canal Co. v. Bentley, 66 Penn. St. 30; Smoot v. Wetumpka, 24 Ala. N. S. 112; Johnson v. Hudson River R. R. Co. 5 Duer, 21.)
In this class of cases the complaint need not allege that the injury was done without fault of the plaintiff. The petition for rehearing is denied.