Lewis v. Riverside Water Co.

Opinion — McKinstry

McKinstry, J.

There was ample evidence to justify a finding that the plaintiff was not guilty of contributory negligence.

Appellant, asserts error, in that the court instructed the jury that if plaintiff without negligence drove off the bridge, “and was thereby thrown from the wagon and bruised or wounded,” the defendant was liable. The point of the objection is, that the instruction, abstractly correct, was misleading, because there was no evidence that plaintiff was thrown from the wagon.

The witness Kleinfelter testified that the plaintiff was thrown from the wagon. True, the plaintiff testified, “ I made a spring when the wagon went down.” But the impelling force of the overturn did not necessarily deprive the plaintiff of all voluntary action, even, while the *251overturn was in progress. If there had been evidence that the wagon was not overturned, or that he leaped from it unnecessarily, when a person of ordinary prudence would not have leaped, and that he would not have been injured had he retained his seat, different questions might have been presented. (Lawrence v. Green, 70 Cal. 417.)

But here both the complaint and the answer allege that the plaintiff was thrown from the wagon, and if the matter had been in dispute, as there was evidence of the fact that he was thrown, the instruction was as favorable as defendant was entitled to have, accompanied, as it was, by full instructions upon the subject of contributary negligence.

Judgment and order affirmed.

Searls, C. J., Paterson, J., McFarland, J., and Sharpstein, J., concurred.