Reports of Cases Determined in the Courts of Appeal of the State of California

UNITED STATES.
Comp. Stats. 1901, p. 1426. Mining.....
Comp. Stats. 1901, p. 3465. Corporations.
Rev. Stats., sec. 2324. Mining...
Rev. Stats, sec. 5152. Corporations.

562 694 562 691

OREGON. Gen. Laws, sec. 35. Seduction....

771

REPORTS OF CASES

DETERMINED IN

THE DISTRICT COURTS OF APPEAL

OF THE

STATE OF CALIFORNIA.

[Civ. No. 226. Second Appellate District.-June 23, 1906.] HENRIETTA J. ROWE, Administratrix, etc., Appellant, v. SOUTHERN CALIFORNIA RAILWAY COMPANY, Respondent.

ACTION FOR DEATH-CONTRIBUTORY NEGLIGENCE-STEPPING IN FRONT OF TRAIN-WARNING-ABSENCE OF WANTON NEGLIGENCE-NONSUIT.In an action for death of a foot-passenger who stepped upon the track in front of a railroad train, where it appears that the engineer used diligence to warn him, and tried without avail to stop the train after seeing his peril, the railroad company cannot be charged with wanton negligence, and, as matter of law, the contributory negligence of the deceased appears to have been the proximate cause of his death, and a nonsuit was properly granted.

ID.-DOCTRINE OF LAST CLEAR OPPORTUNITY-NOTICE OF PERIL.-The doctrine which makes a personal injury the fault of him who has the last clear opportunity to prevent it has coupled with it and in it the element of notice; and the defendant is not liable merely becausee it ought to have known, where its engineer had no notice of any physical defect of hearing or absent-mindedness on the part of the deceased, or that he was going to disregard all warnings and actually advance upon the track in front of the train, until it was too late to avoid the killing by stopping the train. ID.-POWER TO PREVENT INJURY-CIRCUMSTANCES ATTENDING LAST OPPORTUNITY. Another element of the rule as to the last clear op4 Cal. App.-1

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Reports of Cases Determined in the Courts of Appeal of the State ..., Volumen4