Imágenes de páginas
PDF
EPUB

liability to third persons in such cases has been settled by repeated decisions. 10 Cal. 417.

SEC. 3. The degree of care which a party who constructs a dam across a stream of water is bound to use, is in proportion to the extent of the injury which will be likely to result to third persons, provided it should prove insufficient. It is not enough that the dam is sufficient to resist ordinary floods, for if the stream is occasionally subject to great freshets, those must likewise be guarded against; and the measure of care required in such cases is that which a discreet person would use if the whole risk were his own. In a case where the plaintiff gave evidence that the defendant was the possessor of a saw mill and dam above the plaintiff's works and, by means of the dam, had raised a large body of water, about a mile in length and varying in width from a few rods to half a mile; and that the dam gave way and let down the whole body of water upon the plaintiff's works below and which swept away and destroyed his property to a large amount; and at the time. the dam gave way there had been no unusual fall of rainthe court held that the defendant was subject to the maxim: Sic utere tuo ut alienum non lædas; and, to comply with the requisition of the common law, it was the duty of the defendant to have used ordinary care and diligence in making repairs to his dam or in drawing off the water from his pond, to prevent injuries to the plaintiff's furnace. If the defendant did not use this care and diligence, he was guilty of negligence and liable for consequential damages, but he was not liable for inevitable accident. And if the dam were to break without any negligence or through inevitable accident, it would be the duty of the party to repair it and stop the injury as soon as practicable. 10 Cal. 417, 418.

SEC. 4. This is an action for injuries to a garden, occasioned by the breaking of a reservoir. On the trial of the case the court instructed the jury, in substance, that to entitle the plaintiff to recover it must appear that the breaking of the reservoir resulted from the gross negligence of the defendants. This instruction, considered by itself, was no doubt erroneous, but the court proceeded to explain what was meant by gross negligence in such a manner that

[ocr errors]

the jury could not have been misled. They were told that the defendants must have taken the same care of their reservoir and the water in it, as they would have done, being prudent men, had the garden of the plaintiff been their property, and that otherwise they had been guilty of gross negligence, and were liable in damages. We understand the law to be well settled that the measure of care required in such cases is that which a discreet person would use if the whole risk were his own. The conduct of the defendant must be viewed with reference to the caution which a prudent man would, under the given circumstances, have observed. This is the rule laid down in Hoffman vs. Tuolumne County Water Company (7 Cal. 413), and in Wolf vs. St. Louis Water Company (7 Cal. 541). 17 Cal. 98.

SEC. 5. A vessel in the harbor of San Francisco, moored in the usual track of bay and river steamers, should set a light and keep a watch in a dark night, or she cannot recover damages for an injury sustained by being run into by a steamer, where there was neither gross negligence nor intentional wrong on the part of the steamer. The want of such watch and light is to be deemed negligence per se, and the court should instruct the jury in such case to find a verdict in favor of the defendant. 1 Cal. 459.

SEC. 6. A plaintiff suing for an injury from collision must be faultless. But the neglect of the injured vessel to rig in her jib-boom, as required by the port regulations, will not bar the action, if it be shown that such neglect did not cause the collision, although it may have increased the injury. 2 Cal. 24.

SEC. 7. When a vessel is properly in charge of a licensed pilot, the owner is not liable for damages which may ensue from the negligence or misconduct of the pilot. Under our statute, however, the responsibility of taking a position or berth, for a vessel in port, rests upon the master of the vessel or upon the harbor master, and therefore the owner is not exempt from liability for injuries committed by taking an improper berth, although such berth may have been selected by the pilot who brought the vessel into port. 2 Cal. 24.

SEC. 8. In an action for an injury to the plaintiff's cart

or coach, or horses, by negligently driving against them, the plaintiff's own driver or coachman is not a competent witness for him, without a release. And there is, in principle, no difference between the case where the master is plaintiff and where he is defendant. The negligence of the servant in either case defeats the master. 7 Cal. 256.

SEC. 9. A party in the actual possession of cattle at the time of the injury is entitled to maintain an action for any injury to them while in his possession. 9 Cal. 58.

SEC. 10. A railroad company is not liable for damages caused by fire from sparks from their engine, unless negligence is proven by the plaintiff. 7 Cal. 340.

SEC. 11. A municipal corporation is not liable for the destruction of a building, in pursuance of the directions of its officers, where no statute exists creating such liability. So held, in a case where the building of the plaintiff was blown up by the directions of the alcalde and several members of the ayuntamiento of San Francisco, during a conflagration, for the purpose of staying its progress, and where it appeared that the destruction of the building by fire was not inevitable. 1 Cal. 355.

CHAPTER LVI.

INJURIES TO THE PERSON.

SECTION 1. On this subject the case of Kramer vs. Market-street Railroad Company is explicit. The points decided

are:

1st. That a civil action for damages for the death of a person, per se, cannot be maintained by any one at common law.

2d. That in this state, a civil action for damages for the death of a person can be maintained only by the administrator or executor of the deceased.

An act of the legislature, passed April 26th, 1862, provides for compensation for causing death by wrongful act, neglect or default. The eleventh section of the practice actwhich provides that "the father, or in case of his death or

desertion of his family the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward"-does not create a right of action where none existed before, but merely designates the persons by whom an action for causes therein mentioned, which then existed or might thereafter be created by statute, should be brought. At the time the practice act was passed, the death of a person constituted no cause of action, and the eleventh section of that act, so far as it designates the parties by whom an action for the death of a person may be brought, is repealed by the act of 1862, which provides that "every such action shall be brought by and in the names of the personal representatives of such deceased person." The words "personal representatives," as used in that act, mean the administrator or executor of the deceased, and not the heir or next of kin. Here the plaintiff sues as father [of the child killed] or sole heir of the deceased person.

SEC. 2. Where in an action brought by a passenger of a stage-coach against the owners thereof for injuries sustained by reason of the upsetting of the coach, it appears that the coach at the time of the accident was driven by the servant or agent of the owner, the rule in such cases is that the principal is liable only for simple negligence, and that exemplary damages cannot be imposed upon him. 7 Cal. 120.

SEC. 3. The rule of law regulating the obligation between master and servant or contractor and workman, is that the latter is liable for all accidents occurring in the course of the employment which are not induced by the carelessness or improper conduct of the employer. other words, the master is bound to use reasonable care and diligence to prevent accident or injury, and if he does not, he will be responsible for the damages. 6 Cal. 210.

In

SEC. 4. If a party be employed to do a lawful act, and in doing it he commit a public nuisance, his employer is not liable. Thus, where the defendants contracted with A to fill in the earth over a drain which was constructed for them across a portion of the highway, from their house to the common sewer, and A having filled the drain left the earth so heaped up above the level of the highway as to

constitute a public nuisance, in consequence of which the plaintiff in driving along the road sustained personal injury, for which he brought his action; and a few days previous to the accident, and before the completion of the work, one of the defendants had seen the earth heaped up on a portion of the drain, but there was no evidence that either of the defendants had interfered with or exercised any control over the work, the court held that there was no evidence to go to the jury of the defendants' liability. 8 Cal. 492. SEC. 5. The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskillful or careless person to execute his orders should be responsible for any injury resulting from the want of skill or want of care of the person employed; but neither the principle of the rule nor the rule itself can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned. Cal. 491.

8

SEC. 6. Where a man is employed in doing a job or piece of work with his own means and his own men, and employs others to help him or to execute the work for him and under his control, he is the superior, who is responsible for their conduct, no matter whom he is doing the work for. To attempt to make the primary principal or employer responsible in such cases would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded. 8 Cal. 492, 493.

.

SEC. 7. The doctrine is, that a person who undertakes the erection of a building or other work for his own benefit,. is not responsible for injuries to third persons occasioned by the negligence of a person or his servant, who is actually engaged in executing the whole work under an independent employment or a general contract for that purpose. 8 Cal. 493.

SEC. 8. Thus, where a city had entered into a contract with F, to grade a certain road, and F made a contract with R to do all the blasting of rocks required, and in blasting several fragments of rock were thrown into the house of the plaintiff, producing injury to his family and property; it

« AnteriorContinuar »