Green v. Los Angeles Terminal Railway Co.

preaching the track of defendant, at the place where she was killed, used ordinary care, and did that which an ordinary prudent person .would have done under the circumstances, and did not by her own carelessness, or negligence, in any wise contribute to said accident or injury. The deceased was a woman of mature age, in good health, and in full possession of all her faculties. She approached the track of defendant on foot and by daylight, at a point from which it was plainly visible to a distance of eight hundred feet to the eastward, beyond which it made a curve to the north. When thirty-feet distant from the track she was seen to look towards the east and then immediately advance along a path which crossed the track at an angle of thirty degrees. As the track extended nearly east and west, and her course was from' southeast to northwest, this caused her face to be turned partly away from the train, which was approaching from the east. It is to be inferred that when she looked towards the east from the point thirty feet distant from the track, the train had not rounded the curve and was out of view, for she advanced slowly along the path, without again looking up, and when in the act of stepping on the track was struck by the locomotive and killed.

“Under these circumstances it is clear, in view of numerous decisions of this court, and of the great weight of authority elsewhere, that she cannot be acquitted of culpable negligence directly contributing to the fatal result. While it is true that negligence is ordinarily a question of fact, it is, in some cases, a conclusion of law. In the case of Herbert v. Southern Pacific Co., 121 Cal. 230 , Justice. Temple, delivering the opinion of the court, after laying down the general rule, stated the exception as follows:—

“ ‘But cases arising from injuries suffered at railroad crossings have been so numerous, and upon certain points there has been such absolute accord, that what will constitute ordinary care in such a case has been precisely defined, and if any element is wanting, the courts will hold, as matter of law, that the plaintiff has been guilty of negligence. And when injury results which might have been avoided by the use of proper care, the plaintiff cannot recover, although the defendant has also been guilty of negligence. In this special ease the amount of care, as well as the nature of it, has been

settled.’ To illustrate this view he proceeds, as follows: ‘The railroad track of a steam railway must itself be regarded as a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains. What he must do in such a case must depend upon circumstances. If the view of the track is obstructed, he should take greater pains to listen. If, taking these precautions, he would have seen or heard the approaching train, the very fact of injury will raise a presumption that he did not take the required precaution.’

“The language here quoted, from one of our own decisions, is strictly applicable to the present case. If plaintiff’s wife had taken the precaution to look, and had availed herself of every opportunity she had to look for the approaching train, she need not have been injured, and we are not obliged to resort to any presumption to establish her failure to take the required precaution, for the evidence and the findings show that after looking along the track toward the east once, when she was thirty feet distant therefrom, she did not look again, but, turning her face in an opposite direction, walked so slowly that the train, coming from a point beyond her view at the time she looked, could travel over eight hundred feet while she was covering the thirty feet between her point of observation and the nearest rail of the track. The only answer of the respondent to the claim that this was negligence per se is, that the precaution she took would have been entirely sufficient if the train had not been running at a reckless rate of speed, and that she had a right to assume that it would only move at a lawful and proper rate. But this argument also is answered by the Herbert case, where Judge Temple, commenting on a similar contention, says: ‘The defense of contributory negligence implies that defendant may have been guilty of such negligence as would justify a recovery by plaintiff, if he were not also in default. ’ There is, in other words, no occasion for the application of the rule as to contributory negligence, except in cases where it is shown or assumed that the defendant has been guilty of actionable negligence. When such negligence is not shown, he is for that reason alone free from any liability, and only when it is shown has he any occasion to exonerate himself by proof of contributory negligence on the part of the plaintiff. It is no

excuse, therefore, for plaintiff’s wife that the train was running faster than was proper at that point. There was no law or ordinance restricting its speed to any particular rate, and if, as the trial judge concluded, the speed was, under the circumstances, excessive, a reasonably careful person would have guarded himself from the consequences of such negligence by the easy and simple precaution of looking, when about to pass from a position of safety to a position of danger. A person on foot, in possession of all his faculties, and in complete control of his own movements, stepping on a railroad track immediately in front of a train which has been moving eight hundred feet at a speed of less than thirty miles an hour, in full view, is clearly guilty of negligence. Upon this point the case of Holmes v. South Pacific Coast Ry. Co., 97 Cal. 167 , is conclusive authority. There it was said: 'A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to it, to be struck by a passing train without the exercise of constant vigilance, in order to be made aware of the approach of a locomotive, and thus be enabled to avoid receiving injury; and the failure of such person, so situated with reference to the railroad track, to exercise such care and watchfulness, and to make use of all his senses in order to avoid the danger incident to such a situation is negligence per se. This statement of the doctrine of negligence per se, made ten years ago, was based upon several decisions of this and other courts, cited in the opinion of Justice De Haven, and the rule has been applied in a number of more recent cases decided here. (See Herbert v. Southern Pacific Co., 121 Cal. 227 ; Bailey v. Market-Street Ry. Co., 110 Cal. 329 ; Lee v. Market-Street Ry. Co., 135 Cal. 295 ; Green v. Southern California Ry. Co., 138 Cal. 1 ; Warren v. Southern California Ry. Co., 138 Cal. 1 , and cases cited.)

“In other jurisdictions the same doctrine has been frequently applied in cases closely resembling the present. These decisions have been cited in the briefs of counsel, and ,it is unnecessary to repeat the citations here, but we will quote the language used by the judges in one or two instances in discussing a state of facts substantially the same as those which we have before us.

‘' Commenting upon a case in which the injured party had looked for an approaching train when some distance from the track and had then driven "on without again looking, the supreme court of New Jersey says: ‘If risk is inherent in a continuing state of things, the duty to exercise reasonable care is a continuing obligation. This at least must be true, that a man is negligent who attempts to drive across a railroad line after listening and looking only once toward a quarter from which a train may approach, if these acts of attention and observation are performed when the observer is so far from the crossing that before he will reach it a train coming from that quarter, and open to his further attention and observation, has time to advance so as to endanger him.’ After citing several decisions to the same effect the court proceeds: ‘These opinions show that persons who cross railroad tracks, either on foot or in vehicles, are strictly held to the duty of careful observation and attention. In each of these eases the plaintiff was injured notwithstanding some care on his part. In each case a judgment of nonsuit was sustained. In each case the defect in plaintiff’s cause of action was the same. The defect was, that though he exercised care at first, he did not continue to be careful, but became inattentive to his surroundings before he reached a place of safety.’ (Winter v. New York etc. R. R. Co., 66 N. J. L. 677 .)

“In Central of Georgia Ry. Co. v. Forshee, 125 Ala. 199 , the supreme court of Alabama says: ‘It is equally clear, on principle and authority, that this duty must be performed at such time and place, with reference to the particular situation in each case as will enable the traveler to accomplish the purpose the law has in view in its imposition upon him. He must stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened, and his attempt to proceed across the track. If he stops so far from the railway as that a train, which could not be seen from that point, could and does reach the crossing by the time he has traversed the intervening distance and gotten on the track, he negligently contributes to the resulting collision and injury, and the same

is true if, though he stop at the track, he lingers there after looking and listening, and delays crossing until a train not in sight or hearing when he stopped, looked, and listened has come meantime upon the scene, and collides with him when he does attempt to cross.’

“The court of appeals of New York, speaking of the duty of a person about to cross a railroad track, says: ‘ To be sure, the statute requires a railroad company to give specified warnings, but it neither takes away a man’s senses nor excuses him from using them. The danger may be there; the precaution is simple. To stop, to pause, is certainly safe. His time to do so is before he puts himself in the very road of casualty. ’ (Wilds v. Hudson River R. R. Co., 24 N. Y. 430 .)

“The supreme court of Minnesota says: 'We are unable to find in the record any excuse for the intestate’s disregard of his obvious duty to himself, to use his eyesight at the time when he could easily have discovered the danger of collision, which was up to the very moment he stepped upon the main track. Until then he had full control of his movements. He could by the slightest move of his head towards the east have discovered his hazard, and by the slightest check of his movements have avoided the same. ’ (Olson v. Northern Pacific R. R. Co., 84 Minn. 258 .)

“In all of the cases from which the foregoing quotations have been made, and in many others cited in the briefs, the negligence charged against the defendant, and proved or assumed for the purpose of the decision, was excessive speed in the movement of trains, or omission of customary signals by sounding the whistle or ringing the bell,—the same character of negligence, that is to say, which plaintiff contends excused his wife from looking a second time for the approach of the train. They therefore sustain both propositions laid down by Justice Temple in the Herbert case, as stated above, and in the absence of more direct authority to be found in our own decisions would warrant us in holding, if the question were a new one, that a person who with his eyes open steps upon a railroad track immediately in front of a moving train, visible from a point eight hundred feet distant from the point of collision, is necessarily, and as matter of law, guilty of contributory negligence.”

Under such circumstances the judgment and order must be reversed, unless there is some other feature of the case presented by the findings upon which they can be sustained.

It is contended by respondent that such a feature exists, and that it arises from a special finding of the court—No. 7— which is as follows: “As said train rounded said curve and came upon said Humboldt Street, going at a high and dangerous rate of speed, downhill, no bell on the engine thereof being rung, or other warning of its approach being given, the engineer in charge of the engine on said train saw said Bessie Green and knew that she was walking on said path, and crossing said Humboldt Street, ahead of said train, and that she gave no evidence of knowledge of the approach of the train. That, notwithstanding such facts, said engineer did not slacken or lessen the speed of said train, or attempt to give said Bessie Green warning of its approach. That as, and just after said train crossed said Avenue 23, going toward said Bessie Green, and at such high rate of speed, said engineer still saw said Bessie Green, and still saw and knew she was advancing upon said track, and that she still gave no evidence of knowledge of the approach of said train, but said engineer still did not lessen the speed of said train, or blow a whistle or ring a bell, or give other warning of the approach of said train, nor was any given until the train was within ten or fifteen feet of the point of the accident. That said engineer could have stopped said train at any time within two hundred feet after starting to do so. That when within ten or fifteen feet from the place of such accident the engineer blew the whistle, applied the air-brakes, and reversed the engine, and did all in his power with the appliances he had to stop the train, and the fireman rang the bell. ’ ’

Respondent’s contention is, that while the general rule may be, that one cannot recover where his neglect contributed

There is no question but that this exception to the general rule exists, and is usually extended to that limited class of cases where the failure to avoid the injury after discovery of the danger to plaintiff amounts to gross neglect and approaches actual wantonness on the part of the defendant. The rule on this subject is tersely and clearly stated in Shear-man and Redfield on Negligence (see. 99) as follows: “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by defendant’s neglect, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by defendant’s omission, after becoming amare of plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him.”

It applies in cases where the defendant, knowing of plaintiff’s danger, and that it is obvious that he cannot extricate himself from it, fails to do something which it is in his power to do to avoid the injury. It has no application, however, to a case where both parties are guilty of concurrent acts of negligence, each of which, at the very, time when the accident occurs, contributes to it.

This whole subject is fully discussed in Holmes v. South Pacific Coast Ry. Co., 97 Cal. 169 , where the plaintiff, walking up and down the defendant’s track at a station while waiting for an approaching train, negligently remained on the track and was struck by the locomotive. In that case, discussing the liability of the defendant, notwithstanding the plaintiff’s contributory negligence, this court quotes approvingly the language of the supreme court of Maine in O’Brien v. McGlinchy, 68 Me. 552 , as follows: “But in cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act

All that this finding in effect declares is, that the defendant was guilty of negligence in failing to give the usual warnings and running its train at an excessive rate of speed; that the engineer saw Bessie Green approaching the track along a path which crossed it; that she gave no evidence of knowledge of the approach of the train; and that, notwithstanding such fact, the engineer did not slacken or lessen the speed of the train, or attempt to give said Bessie Green warning of his approach.

But during all this time, it will be observed, Bessie Green, was in a position of absolute safety; she was not upon the defendant’s track, but walking upon the pathway approaching it. There was nothing to indicate to the engineer that she would leave that place of safety and put herself in one of danger. The mere fact that she gave no evidence of a knowledge of the approach of the train while walking along the pathway towards the track did not indicate to the engineer that she was about to place herself in a position of peril. It is a matter of common observation that thousands of people daily cross in front of trains and approach crossings for that purpose, without giving any indication that they are aware of the coming of the train. They proceed, determining for themselves whether they have sufficient time to make the crossing safely or not, solicitous only for their personal safety, and giving no indication to the engineer whether they will hazard the risk of crossing, or pause until the train passes by, or in any manner indicating that they are aware of the approach of the train, or are concerned about it.

And as to this quoted finding there is nothing in it to indicate that, as far as the engineer knew or could have known, Bessie Green might not have been perfectly well aware of the approach of the train and still have given no indication or manifestation of that knowledge. The law cast upon her the duty of looking to see, when approaching the point of danger, whether there was a train in sight which might prevent her crossing the track in safety, and the engineer had a right to assume that she had taken the precaution which the law required to insure her own safety, was aware of the sitúa

And unless it can be said as a matter of law that it is the duty of an engineer to check his train when he sees one approaching a track and giving no indication of knowledge of the coming train, then this finding amounts simply to a finding that the engineer was negligent, which, of course, is conceded in the case.

This is not, however; the negligence which we are now discussing, and for which the defendant is claimed to be liable. Its liability is for negligence after the engineer had discovered that Bessie Green had placed herself in a position of actual danger.

During all the time that she was approaching along the pathway to the crossing she was in a position of absolute safety, and there is no rule of law which charged the engineer with knowledge that she was about to change her position of safety for one of peril. On the contrary, the engineer had a right to assume that she was in possession of her faculties and would retain her place of safety, and not recklessly expose herself to danger. To hold that the engineer, because she gave no indication of knowledge of the approach of the train, was bound to assume that she would heedlessly leave a place of safety, put herself upon the track, and endanger her life, would be to revise the rule which, as far as we are advised, is universal in all jurisdictions, and certainly is the rule in this state, that where an engineer sees a person approaching a track he has the right to presume that the person is in possession of his ordinary faculties, alert to the danger which may ensue from passing trains, that he will not attempt to cross in view of the train, and is therefore not required to check the speed of the train to enable him to cross in front of it, or to ascertain whether he is about to do so.

In Green v. Southern Pacific Co., 122 Cal. 565 , an action "brought to recover damages for the death of the husband killed at a crossing, this court says: “Unless the defendant knew, or had reason to believe, that the deceased was from some cause not possessed of the ordinary ability to care for himself, it had the right to presume that he possessed such ability and would take the ordinary precautions to protect

And the general rule upon this subject is clearly expressed in Olson v. Northern Pacific R. R. Co., 84 Minn. 258 , heretofore referred to. That was a case where the deceased was killed in attempting to cross a railroad track, and the court in its decision comments on the facts and declares the rule of law applicable to them. It says: “We are unable to find in the record any excuse for intestate’s disregard of his obvious duty to himself to use his eyesight at the time when he could easily have discovered the danger of collision, which tv as up to the very moment he stepped upon the main track.

“Until then he had full control of his movements. He could, by the slightest movement of his head towards the east, have discovered his hazard, and by the slightest check of his movements have avoided the same. Under such circumstances his obvious want of care must preclude a recovery in this case.

. . . Plaintiff strenuously urges that, notwithstanding plaintiff’s intestate may have been negligent, yet the servants in control of the engine of the freight-train could, with ordinary care, have discovered his danger, and their failure to ring the bell, or make some effort to avoid the accident, after they could have seen intestate, authorizes the submission of the case, notwithstanding such contributory negligence. We are unable to adopt this view. The reasonable presumption that due care will be exercised by all persons in mutual relation when care is required is not a partial or one-sided doctrine, but applies to each alike. It seems clear to us that while the intestate might have the right to say that all signals should be observed by the defendant’s servants in the exercise of ordinary care by such, the latter would also have the right to indulge in the same presumption with reference to the conduct of the unfortunate man who was deprived of his life by his own negligence, and presume that he would do his duty likewise. The engineer could not be held to suppose absolutely, as a matter of law, that a young man of good intelligence, with average faculties, before going on a railway crossing, would keep his head turned away from the direction in which a train might be approaching, when the slightest glance of the eye, even at the last moment, would apprise him of the danger, or the checking of his movements, upon

Having then placed herself in a position of peril only from the moment she stepped from the pathway to the track, did the defendant’s engineer, when her peril thus arose, have a clear opportunity of avoiding injuring her, and did he fail to do so? We are satisfied that this inquiry must be answered in the negative, and that this conclusion is irresistible when we consider the finding above quoted—special finding No. 7— in connection with another special finding—No. 6.

This last finding is, “That just as Bessie Green stepped upon defendant’s track to cross the same, going as above described, she was struck by the engine of defendant’s train, running down and along said track. ’ ’

It is apparent from the quoted finding, No. 7, that from the moment the engineer discovered that Bessie Green was about to pass from the footway on to the track—from her place of safety to one of peril—he did all in his power to avert the accident, because it is expressly found, “that when within ten or fifteen feet from the place of such accident the engineer blew the whistle, applied the air-brakes and reversed the engine, and did all in his power, with the appliances he had to stop the train, and the fireman rang the bell.”