This is an appeal from a judgment for damages awarded plaintiff, arising out of injuries alleged to have been sustained by him when he was struck by a car of defendant corporation, which was being operated in a switching movement. Plaintiff was employed as a watchman of the property of the Pioneer Paper Company, over whose property a private railroad track and switch were established and maintained for the purpose of receiving and shipping its product. Gates were located at the entrance of the track upon said property, which were secured by two locks, one of which was placed and kept on the gates by the Pioneer Paper Company and the other by the defendant *Page 343 Southern Pacific Company. On December 30, 1927, at the hour of 5:30 o'clock or thereabouts, the plaintiff, together with one Moriarity, was engaged in attaching to the gate the Pioneer Paper Company's lock. While so engaged, appellant switched a box-car into the Pioneer Paper Company's yard, striking the plaintiff and injuring him. The car was not accompanied by a trainman or yardman or any light.
The jury brought in a verdict in favor of the plaintiff for the sum of $8,500, whereupon defendant made a motion for a new trial. This motion was denied, provided that the plaintiff should file — within ten days from the date of the order — his written consent to reduce the judgment from $8,500 to $6,000. Plaintiff filed his consent to such reduction in the amount of the judgment, and defendant now appeals to this court from such judgment and the whole thereof.
Respondent alleged, and the jury evidently found, that he was injured through the negligent switching operations of the appellant and its employees, in that he was given no warning of the approach of the switched box-car. As a defense to the action appellant alleged contributory negligence on the part of the respondent, and now contends:
First: That the evidence is insufficient to sustain negligence on the part of appellant or its employees;
Second: That the respondent was guilty of contributory negligence as a matter of law;
Third: That the trial court erroneously instructed the jury;
Fourth: That the damages allowed are excessive;
Fifth: That the trial court erred in refusing to grant a new trial.
[1] We have carefully examined the record in this case, and we are of the opinion that there was sufficient evidence to prove that appellant was guilty of negligence, in that its employees shunted or switched the empty box-car, across a public street and into the yard of the Pioneer Paper Company, after darkness had fallen, without giving any warning of its approach by means of placing a light thereon or of placing a trainman or yardman on the front thereof, as required by rule 103-A of appellant company. [2] The companion of the injured man, who was facing the direction from *Page 344 which the car came, testified that he did not see the car until it was within eight or ten feet of him and respondent, and that the car was moving at a rate of fifteen miles per hour; too late for his warning to benefit the respondent.
As to contributory negligence, the evidence is sufficient to support the verdict.
[3] In support of its third point, appellant contends that the trial court erroneously instructed the jury as follows (Trans., fol. 429): "In determining whether or not the plaintiff was guilty of contributory negligence, you should endeavor, asnearly as you can, to view the situation as it appeared to himbefore he was injured. After an occurrence, it is often seen how it could have been avoided, but the facts should be viewed fromthe standpoint of a workman of the class to which plaintiffbelonged, rather than as they might appear to you now who may beunaccustomed to performing similar work or to work in similarplaces." Appellant, in connection with this instruction, claims that the duty is at all times imposed upon the jury to judge and determine the negligence of a person by that standard of carewhich would be exercised by reasonable and prudent persons underlike or similar circumstances. The foregoing instruction should not have been given. It had a tendency to obscure the rule which elsewhere in the instructions was clearly stated, that the plaintiff was bound to use reasonable care to provide for his own safety. But the court also (Trans., fol. 449) instructed the jury that in operating its train, the defendant owed no greater duty to the plaintiff than the plaintiff owed to himself to prevent injury; also (fol. 458) that it was his duty, in the exercise of ordinary care which the law requires of those who place themselves upon railroad tracks, to look and listen for the purpose of seeing and hearing that which one may, in the exercise of ordinary care, see and hear. In view of these and other given instructions of similar tenor, the foregoing quoted instruction against which counsel for appellant addresses his argument, becomes of slight relative importance. The instructions relating to plaintiff's duty in the premises were, as a whole, expressive of the defendant's own theory of the case. There was no judicial error.
[4] Further, appellant takes exception to the italicized portion of the following instruction given by the trial *Page 345 court to the jury (Trans., fol. 432): "In determining whether the plaintiff is guilty of contributory negligence, you will keep in mind that he had a right to assume the defendant would obey the law and not be guilty of negligence," contending that it was the province of the jury to determine whether or not appellant was guilty of negligence on the one hand, and whether or not respondent was guilty of contributory negligence on the other. In reply to this criticism it is sufficient to say that appellant should not be heard to object, in view of the fact that, as is pointed out by respondent, appellant itself requested, and the court gave, substantially the same instruction defining the right of appellant's trainmen to assume that respondent would obey the law and take the necessary precautions imposed by it upon him. (Trans., fol. 460.)
[5] Appellant maintains that the damages allowed are excessive. This court is not at all convinced that the damages awarded to the plaintiff are so exorbitant "as to suggest, at first blush, passion or prejudice or corruption on the part of the jury." (Hale v. San Bernardino Valley Traction Co.,156 Cal. 715 [106 P. 83, 84], and cited in Nolen v. EngstrumCo., 175 Cal. 464, at 467 [166 P. 346].) It would therefore not be proper for us to interfere, especially in the face of the $2,500 reduction made by the trial court.
The judgment is affirmed.
Conrey, P.J., concurred.