Noyes v. Southern Pacific Railroad

Paterson, J., concurring.

I concur in the judgment.

In the former decision it was said: “The same facts which show that the deceased was negligent show also that the employees of respondent were not guilty of negligence.”

Upon further consideration of all the evidence, I am not prepared to say, as matter of law, that the engineer in charge of the engine on the main track, with his knowledge of all the circumstances, was not negligent in running at a rate of speed which would bring the locomotives together at the narrow part of the road where the men were traveling.

The question is not, How would I act were I a juror? but whether there is any evidence at all from which inferences may be drawn in support of or against the charge of negligence. Speaking of nonsuit, the court, in Wilson v. Southern Pacific R. R. Co., 62 Cal. 172, said: “But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or con_ sists of circumstances from which inferences may be drawn for or against it, it is the province of the jury *292to determine, under instructions by the court, whether the evidence establishes it as the proximate cause of the injury complained of.”

Whether the engineer was guilty of negligence, and whether the deceased was guilty of contributory negligence, under the rule stated and under the evidence, cannot be determined as matter of law, but should be submitted to the jury, with proper instructions from the court.