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excusable for neglecting to avail himself of any other source of knowledge. Again, if he had a right to so assume, if no bell, as a matter of fact, was rung or whistle sounded, he would have a right to assume that no train was in fact approaching, and he would not be chargeable with negligence if he acted upon that assumption and proceeded to cross the track.

In Huston v. Southern California Ry. Co., 150 Cal. 703, [89 Pac. 1093], it is said: “It is not the law of this state that a person approaching a railroad crossing is authorized to assume that the person operating a train will not in any way be negligent in that operation. This doctrine has been asserted in some of the states, but is opposed to the law as laid down in the decisions of this state and of the supreme court of the United States. Such a rule would abrogate the doctrine of contributory negligence in all such cases.'

There is manifestly another fatal error lurking in the last clause of the instruction. Therein, the court plainly invaded the province of the jury in a matter of vital importance. It was probably an inadvertence to declare that “there was no sound of an engine, bell, or of a whistle," but the effect was the same, whether the statement was intentionally made or

If the evidence had all been in favor of respondent's contention, it might be said that such declaration was without prejudice, but on this point there was a sharp conflict in the testimony. The engineer, the two brakemen, and the firemen testified that the whistle was sounded and that the bell was rung up to the crossing, and had been ringing constantly for about two miles, back from the crossing. It is plain, therefore, that the question should have been left to the jury without any suggestion or statement as to the fact by the court.

Again, it is plain that the negligence of appellant, if any, which was the proximate cause of the injury, consisted in running the train at a high rate of speed without sounding any warning of its approach. But these acts of commission and omission were the acts of appellant's agents whom we have already mentioned. Appellant did not, of course, actually participate in running the train, but it is liable, if at all, upon the theory that it is responsible for the want of care on the part of its servants. The jury found, however, that said servants were not guilty of any negligence. It

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would follow that appellant was acquitted of any dereliction in running the train. In Bradley v. Rosenthal, 154 Cal. 420, 425, [129 Am. St. Rep. 171, 97 Pac. 875), it is held that where recovery is sought, based upon the act or omission of an agent, which the principal did not direct, and in which he did not participate, an acquittal of the agent of negligence is an acquittal of the principal, because the principal's responsibility is cast upon him by law because of his relationship to his agent.

There is some contention that appellant did actually participate in the accident by reason of permitting the growth of weeds so as to obstruct the view of the track. But from respondent's standpoint upon the assumption that he was exercising ordinary care, it is quite clear from the record that he would have been apprised of the danger if the bell had ' been properly rung and the whistle sounded. He can justify his cause of action only upon the theory that these precautions were omitted. If he had conceded that these usual warnings were sounded, he would have had no cause with which to go to the jury, as he showed no reason why he would or could not have heard them in time to avoid the collision. Indeed, he alleges in his complaint that he would have heard the warning if it had been given. The presence of the weeds simply emphasized the importance and duty of great care on the part of those in charge of the train, and we repeat that since they were acquitted of negligence, the jury, to be consistent, should have gone a step further and exonerated the appellant.

The judgment and order are reversed.

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[Civ. No. 1764. First Appellate District.-September 29, 1916.) ROSENBAUM ESTATE COMPANY (a Corporation), Re

spondent, v. ROBERT DOLLAR COMPANY (a Corpora-
tion), Appellant.


or LEASE-CONSTRUCTION OF ORAL AGREEMENT -TIME OF PAYMENT OF RENT.-An oral agreement made between the parties to a written lease just prior to its expiration providing that the lessee might remain a tenant of the premises “from month to month at the same rental” as stipulated in the lease, contemplates that the rental shall be continued to be paid in the same manner as provided in the


NOTICE TO REPAIR.–A tenant is not warranted in removing from demised premises under the provisions of sections 1941 and 1942 of the Civil Code, where no definite notice to repair is given.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Marcel E. Cerf, and E. P. Shortall, Judges.

The facts are stated in the opinion of the court.

Nathan H. Frank, and Irving H. Frank, for Appellant.

Heller, Powers & Ehrman, for Respondent.

KERRIGAN, J.-This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendant's motion for a new trial in an action to recover rent.

The defendant had been in possession of certain premises belonging to the plaintiff for five years, under a written lease which, among other things, provided that the rent should be three hundred dollars a month, to be paid in advance on the first day of every month. Just prior to the expiration of the written lease the parties orally agreed that the defendant might remain a tenant of the premises “from month to month at the same rental” provided for in the written lease. The defendant accordingly remained in possession of the premises for six months under this new arrangement, paying the rent in advance on the first day of each month up to December

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31, 1913, and on January 5, 1914, upon two days' notice to the plaintiff that it would vacate the premises, it removed therefrom.

The first contention of the appellant is that the rent during the period that it occupied the premises from month to month was not payable in advance but at the end of the month; and that this action having been begun on the 19th of January, 1914, for the rent of the premises for that month, was prematurely brought, and that the finding of the court that the rent was payable in advance is without support in the evidence.

We are unable to agree with this view. From the record

appears that the defendant was to remain in possession of the premises from month to month and to pay the same monthly rental as was provided for in the written lease. We think the arrangement contemplated the payment of the rent in advance. An important incident of the rent is the time of its payment; and the phrase, “at the same rental,” as employed by the parties in this instance, was undoubtedly, in view of their subsequent conduct, intended to cover both the amount of the rent and the time of its payment.

Under section 1945 of the Civil Code, if the tenant had simply remained in possession of the premises after the expiration of the written lease, and nothing had been said between the parties, and the landlord had accepted rent, the law would have conclusively presumed that the hiring was on the same terms as the expired lease; and we think it can hardly be said that where there is an express agreement that the tenant shall remain in possession from month to month at the same rental, the parties contemplated any change in the time of payment of the rent from that which had previously prevailed. Had there been no previous hiring, the appellant's position would be very strong, that the time of payment would be as provided for in section 1947 of the Civil Code, viz., at the end of the period of the hiring; but the circumstances of the verbal renting in this case, and the course thereafter pursued, sufficiently attest the understanding of the parties that the tenant was to continue to pay the rent in advance. Where the meaning of a contract is doubtful, the acts of the parties done under it afford one of the most reliable means of arriving at the intention of the parties. (Mayberry v. Alhambra etc. Water Co., 125 Cal. 446, (54 Pac. 530,

31 Cal. App.--37

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58 Pac. 68); Keith v. Electrical Engineering Co., 136 Cal. 178, 181, (68 Pac. 598].) In our opinion, therefore, having remained in possession of the premises after the thirty-first day of December, 1913, the tenant was liable for rent for the month of January, 1914, unless it was warranted in removing therefrom under the terms of sections 1941 and 1942 of the Civil Code, which provides that the lessor of a building intended for occupation by human beings must, in the absence of an agreement to the contrary, put and keep it in a condition for such occupation; and that if repairs to the premises are necessary, and are not made after reasonable notice, the lessee may vacate the premises and shall be discharged from further payment of rent-which brings us to the second contention of the appellant, viz., that the neglect of the landlord to make repairs of the character indicated justified the appellant in summarily vacating the premises, and relieved it from the obligation to pay any further rent.

The evidence shows that the basement of the premises (in which was conducted the bookkeeping department of the defendant's business, giving employment to ten persons) was very damp during the greater part of the last two years of the tenancy. It does not appear, however, that the defendant gave to the plaintiff any definite notice to repair. True, according to the evidence introduced by the defendant, the attention of the plaintiff was called to the condition of the basement, and on one occasion repairs were made; but apparently the defendant, realizing that the building stood on filled land over which the waters of San Francisco Bay formerly flowed, and which was subject to seepage, and expecting in the near future to move into a new building, concluded to tolerate the condition of the basement. This view is borne out by an examination of all the evidence in the case, and especially by the circumstance that the defendant, at the termination of the written lease, entered into the present oral lease after it had known for eighteen months the condition of the premises about which it now complains. It is true that one of the witnesses for the defendant testified that three days before the vacation of the premises the condition of the basement on account of accumulated seepage had become acute, and could no longer be tolerated; but there was no attempt to show that the condition could not be remedied, or that any notice was given to the plaintiff to repair the defect and make the prem

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