SAMUEL DAVIS et ux., Appellants, v. CALIFORNIA STREET CABLE RAILROAD COMPANY, Respondent, 105 Cal. 131

The Court. Plaintiffs, Samuel Davis and Sarah Davis, his wife, brought this action to recover damages for personal injuries to said Sarah Davis, alleged to have been caused by the negligence of defendant. At the conclusion of the evidence the court, at defendant’s request, instructed the jury to return a verdict for the defendant, which was done, and judgment having been entered thereon, the plaintiffs appealed therefrom within sixty days upon the judgment-roll and a bill of exceptions. The only point made upon this appeal is that the court erred in directing a verdict for defendant.

The material facts are that in 1891 the defendant was constructing a street railroad on Hyde street, and deposited a large quantity of rails and yokes upon the sidewalk in front of plaintiff’s residence, all of which, except one rail, were removed and used in the construction of the road about four weeks before the accident occurred resulting in the injury complained of. The rail that was left upon the sidewalk was twenty-eight feet long and three inches high, and one end of it was under a street gaslight. This rail had remained there for about four weeks, and Mrs.

Davis not only knew it was there, but had seen children and one Chinaman fall over it. The night the injury was received, at about half-past eight, there was an alarm of fire, and some one on the street cried “ Fire ! Fire” ! The night was dark, and it was raining. Mrs. Davis went out to see where the fire was, and Mrs. Smith, who occupied the upper floor of Mrs. Davis’ house, came down for the same purpose. Mrs. Davis told Mrs. Smith to go back as it was raining, and then started to go out into the street to find out where the fire was, and fell upon the rail and dislocated her shoulder.

She testified that she did not know whether or not she ran against the rail; that she knew it was there, but on this night forgot that it was there. The street railroad was not then completed, and the defendant was then engaged in putting in switches in the same block, and this rail was left upon the sidewalk, the defendant expecting to use it in the construction of the switches. There was no conflict in the evidence, and the court did not err in directing a verdict for the defendant. The rule in such cases is well stated by the supreme court of the United States in Delaware etc. R. R. Co. v. Converse, 139 U.

S. 472, as follows: “ Undoubtedly, questions of negligence in actions like the present one are ordinarily for the jury, under proper directions as to the principles of law by which they should be controlled; but it is well settled that the court may withdraw the case from them altogether and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character ¿hat the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.” In Stephenson v.

Southern Pac. Co., 102 Cal. 143, it was said: “ Where the facts are admitted or proven without contradiction the court will determine whether or not they establish negligence or show contributory negligence; but where the conclusion is open to debate it is one for the jury, under proper instructions from the court.” We quite agree with counsel for appellant that previous knowledge or familiarity with a dangerous place or obstruction in a highway is not, per se conclusive evidence of contributory negligence in failing to avoid it.

In this case, if the plaintiffs’ house had been falling, rendering great haste in escaping from imminent danger necessary, the haste, excitement, and fear might reasonably be held sufficient to obliterate all memory or thought of the presence of the obstruction upon the sidewalk. But that is not this case. Here was an alarm of fire, a common occurrence in the city, and wholly insufficient, where its locality is not known to be in the immediate vicinity, to disturb the memory or prevent that reasonable care commonly exercised by persons of mature years. When Mrs.

Davis reached the sidewalk she discovered it was raining. She saw no fire; she was sufficiently calm to advise Mrs. Smith to return to the house. Mrs. Smith, after stating that she heard the alarm of fire and thought it was close by, testified as follows: “ I went down to see Mrs. Davis, and when I got down she was out, and told me to go back because it was raining. She just wanted to go down the street and see where the fire was. Just as I turned round she fell; it seemed to me she was out from the steps, and she fell before I could turn around, hardly.” No danger could have been apprehended by Mrs.

Davis from the fire after she reached the sidewalk, but mere curiosity induced her to start to go down the street to see where the fire was. That she forgot the presence of the rail is not disputed in the evidence, but that the circumstances justified her forgetfulness and consequent want of care cannot be conceded. Appellants cite some fifty cases upon this branch of the case. We cannot review them within the limits of an opinion, nor is it at all necessary. Each rests upon its own peculiar circumstances.

If the facts are doubtful, as the result of uncertain evidence.or conflicting testimony, the question should be submitted to a jury; but here the facts are not doubtful nor the evidence conflicting, and the question is one of law for the court. One point urged by appellants remains to be noticed. It is contended that order No. 1588 of the city and county of San Francisco required defendant to have guarded this iron rail by a lighted lantern every night.

Even if it be conceded that the ordinance required the defendant to keep a lighted lantern at the rail, the only object of the requirement was to enable persons using the walk to see the rail, and if this purpose was served by the gaslight, it was sufficient. It is not contended that the rail could not be seen, nor that lanterns had been kept there until the night of the accident and then were omitted, leading plaintiff to believe the rail had been removed.

She knew the rail was there, and was therefore bound to use reasonable care, and could not he absolved from such care by the negligence of defendant in not keeping a lighted lantern at the place, even if it was his duty to do so. The judgment is affirmed. Hearing in Bank denied.