Simoneau v. The Pacific Electric Ry.

Action by the administrator of the estate of William Alexander Campbell to recover damages for injuries causing the death of his intestate. The plaintiff recovered a verdict and judgment in the sum of seven thousand dollars. The defendant appeals from an order denying its motion for a new trial.

Campbell’s injuries were received while he was trying to cross the track of the defendant corporation at a point where said track intersects 38th Street in the city of Los Angeles. The complaint alleges negligence on the part of the defendant in a number of particulars, of which we need mention only the following. It is averred that the agents of the defendant in charge of its car were negligently and wantonly operating the said car at a rate of speed greatly in excess of eight miles an hour and at a rate of more than twenty miles an hour; that they “sounded a whistle twice just prior to the time of reaching the said crossing as an indication that the ear would slow down and stop at said crossing and then, on the contrary, negligently failed to cause the said car to slow down pursuant to said signal and thereby misled the said Campbell as to the rate of speed at which the said car would approach the said crossing”; and that the defendant negligently failed to equip its car with a life-saving fender. In addition to the general allegations of negligence in respect of excessive speed and the failure to equip the car with a fender, the plaintiff set up the terms of an ordinance of the city of Los Angeles limiting, as he claimed, the rate of speed at the place of the accident to eight miles an hour and requiring at such place the use of a fender. We shall have occasion to refer to this ordinance more in detail hereafter. The answer, in addition to denying or undertaking to deny

The jury returned a general verdict, and also returned' answers as follows to interrogatories submitted by the court:

“Interrogatory No. 1. If you find that the deceased came to his death by reason of the negligence of the defendant, did that negligence consist in the running of the car at an excessive rate of speed or a lack of fenders on the car?

“Answer. Excessive speed.

“Interrogatory No. 2. Was the deceased guilty of contributory negligence or did he act with ordinary care and prudence ?

“Answer. First clause, No. Second clause, Yes.”

The case was submitted to the jury under instructions based on the theory that the ordinance of the city of Los Angeles limiting the rate of speed of cars and requiring the use of fenders applied to the place where the accident occurred. The jury were accordingly instructed that if Campbell, while in the exercise of ordinary care for his own safety, was struck and killed by a car operated by the defendant, the plaintiff was entitled to a verdict if the car was being operated at a rate of speed in excess of eight miles an hour and if Campbell’s death was caused by this excessive rate of speed. The court further instructed the jury that the failure to provide a fender, if such failure was the cause of Campbell’s death, entitled the plaintiff to a verdict under like conditions.

The defendant contends that under the undisputed evidence concerning the location and nature of the track upon which the car was operated the ordinance had no application with reference either to the rate of speed or the use of a fender. The jury seems by its answer to special interrogatory No. 1 to have based its verdict upon the first ground and it will be sufficient in discussing the point to consider the question of speed alone.

The ordinance in question is numbered 12,829 and is entitled “An ordinance requiring cars operated over street-railway tracks to be equipped with fenders therein described, and regulating the operation of cars on street-railway tracks in the city of Los Angeles.” Section 1 provides for the use of a fender. Section 2 reads as follows: “That from and after

the passage of this ordinance it shall be unlawful for any person, firm or corporation to run or operate, or cause to be run or operated, any street-car, or any car, upon any street-railway track, upon or over any street crossing or intersection within the following district in the city of Los Angeles at a greater speed than four miles an hour, or upon or over any street crossing or intersection outside of said district, but within the city of Los Angeles, at a greater speed than eight miles an hour, . . .” The ordinance then describes a district within which the four-mile limit shall apply, said district not including the place where the accident in question occurred.

It appears by the undisputed evidence that the place where the accident occurred was within the limits of the city of Los Angeles and on the defendant’s line of track running from Los Angeles to Long Beach. This line, after running in part over the streets of Los Angeles, entered npon a strip of land running north and south and held and owned by the defendant as a private right of way. This strip was intersected at a right angle by 38th Street. For a considerable distance in either direction from the crossing of 38th Street, exceeding a mile to the north of such crossing, this right of way was fenced in. Except where 38th Street and other streets crossed the line of road, the track was laid with T rails upon ties above the level of the ground in the manner customary in the construction of steam roads. Thirty-eighth Street was a paved street and where it crossed the line of railroad was built up flush with the top of the rails. The fence enclosing the right of way had openings at 38th Street but the crossing was protected by cattle guards as steam railroads usually are. At said point the defendant maintained a railroad-crossing sign bearing the words “Look out for the cars.” The track was used by both the interurban cars running between Los Angeles and Long Beach and by some local cars. The car which struck Campbell was a car running for the greater part of its course over the city streets and, after leaving the streets, over the private right of way to the then city limits. It was operated as a local car stopping on signal to take and discharge passengers. At the time of the accident it was southbound.

Under these circumstances, was the point where 38th Street crossed the track one of the places at which, under a fair con

A street-railway is defined in the Century dictionary as “a railroad constructed upon the surface of the public street in towns or cities; a tramway”; in the Standard dictionary as “a railroad on the surface of the streets, for the convenience of passengers; a surface railroad, as in a city.” Our own court in Board of Railroad Comm’rs v. Market St. Ry., 132 Cal. 183 , [ 64 Pac. 1067 ], quoting with approval the case of Bloxham v. Consumers? etc. Co., 36 Fla. 539 , [ 51 Am. St. Rep. 44 , 18 South, 444 , 29 L. R. A. 507 ], uses this language: “The term ‘street-railroad’ applies only to such roads, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise constructed so that the public are not excluded from the street as a public highway, which runs at a moderate rate of speed, compared with commercial railroads, which carries no freight, but only passengers from one part of a thickly populated district to another, in a town or city and its suburbs.” In Hannah v. Met. St. R. Co., 81 Mo. App. 79 , the court says: “A street-railway has been variously defined. As the name indicates, the primary meaning of street-railway, or street-railroad, is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs.” Similar expressions are to be found in many cases. (Philadelphia v. McManes, 175 Pa. St. 28 , 33, [ 34 Atl. 331 ]; Nichols v. Ann Arbor & Y. St. R. Co., 87 Mich. 361 , [ 49 N. W. 538 , 16 L. R.

Whether or not a railway is a street railway does not depend on the motive power. (Nichols v. Ann Arbor & Y. S. R. Co., 87 Mich. 36 , [ 49 N. W. 538 , 16 L. R. A. 371 ]; McNab v. United Ry. etc. Co., 94 Md. 719 , [ 51 Atl. 421 ].) Various features are to be considered. Among those are the location and method of construction of the track, the manner of the operation of the cars and the general purpose of the enterprise. Here, however, we are confronted by a somewhat narrower question. The ordinance speaks not of the operation of street-railways but of cars upon street-railway tracks. It would seem clear that in the definition of this term the location and manner of construction are most important factors. The decisions above cited, and particularly that of this court in Board of R. R. Comm’rs v. Market St. Ry. Co., . 132 Cal. 683 , [ 64 Pac. 1067 ], indicate that an essential element of a street-railway, in the ordinary acceptance of the phrase, is that the road should run along and upon a street or road in such manner as not to exclude the public from the use of such street or road as a public highway. Applying this test, there can be no doubt that the track of the defendant, in so far as it was laid along its private right of way in such manner as to exclude the general public from the use of any part of the strip, was not a street-railway track.

The respondent draws attention to the fact that, for the width of 38th Street the track was laid flush with the surface so that passengers and vehicles might cross on the street. It cannot be said that this part of the track was thereby converted into a street-railway track. A street-railway, as we have seen, is one running along a public street, not across one. To adopt the contention of the respondent in this regard would mean that the track of every commercial or steam railroad which, in entering the city of Los Angeles crossed any street, became to the extent of the width of such

We have already expressed the opinion that, giving to the words used their ordinary meaning, the language of the ordinance requires that its applicability be made to depend upon the nature and location of the track, rather than upon the character of the particular car that is running upon the track. And, apart from any consideration of mere definition of words, we think the ordinance is given a more reasonable effect by this interpretation. If it were to be held that for the purposes of this particular case, the track in question was a street-railroad track because the car that hit Campbell was a local or street-car, the logical result would be that a car operated as a through passenger or freight car over the same track would not be required to observe the limits of speed. It would follow, too, that such through car when running on city streets over tracks which are ordinarily classed as street-railway tracks, would be free from such limitations. So read, the ordinance would afford very little protection to the public. The ordinance should be construed so as to require both interurban and local cars to be equipped with fenders and to limit their speed when running over street crossings upon those portions of the tracks which are laid upon public streets in the manner which has been described as pertaining to street railways, but to exclude them from the effect of the ordinance when they are being operated upon tracks of the character here described.

From these views it follows that the court was in error in giving the instructions above referred to. The same reason requires the conclusion that defendant’s requested instruction No. IV, to the effect that the ordinance limiting speed was not applicable, should have been given. The appellant also urges that it was error to admit the ordinance in evidence. It may be that this ruling could be defended on the ground that the character of the track could not be definitely known until the evidence was all in. The introduction of the ordinance in advance of proof of the character of the track would be a matter going merely to the order of proof, and would, in itself, be unimportant if on proof of the facts, as shown by this record, the court had instructed the jury that the ordinance was not to be considered.

If it be said that the answer does not deny that the car was being operated upon a street-railway track, it is to be observed that the fact of such operation is not, in express terms, averred in the complaint. But, beyond this, the answer does clearly evidence an intent on the part of the pleader to set up facts showing the inapplicability of the ordinance and, we think, succeeds in effecting this purpose. It is not necessary, in order to raise an issue, that a denial be made in the precise words of the averment sought to be controverted. “Any averment in an answer which, if found to be true, necessarily shows that the allegation of the complaint as to the same matter, is untrue, is a good traverse, and sufficient- as a denial.” (Burris v. People’s Ditch Co., 104 Cal. 248 , 253, [ 37 Pac. 922 ]; Perkins v. Brock, 80 Cal. 320 , [ 22 Pac. 194 ]; Stetson v. Briggs, 114 Cal. 511 , [ 46 Pac. 603 ].)

The errors committed with reference to the ordinance necessitate a reversal. The case seems to have been submitted to the jury without regard to any averment of negligence other than those arising from the ordinance. Upon a new trial, the plaintiff will, of course, be entitled to offer evidence in sup

A discussion of some further points may be useful as a guide for rulings upon a new trial.

The complaint alleges, as an element of negligence, that the, motorman, on approaching 38th Street, gave a signal (two whistles) as an indication that the car would stop. The answer to this allegation is not so direct as it might have been. If the point were of vital importance, we should be inclined to think the denial sufficient to raise an issue on the question whether the blowing of two whistles was intended and ordinarily understood to give notice of an intention to stop. But, since there is to be a new trial, this need not be decided. The defendant, on a proper showing, may be granted leave to amend its answer.

The question of this signal of two whistles has, a double bearing. It is counted on by plaintiff as establishing negligence on the part of the defendant' in failing to slow down or stop after indicating an intent so to do, and is further urged as tending to overcome the inference—otherwise perhaps irresistible under the facts shown in the record-—that Campbell had been guilty of contributory negligence. We think that, if the custom or practice of so signalling were shown, it would be legitimate matter to be considered in both aspects. That failure to follow the announced signal would tend to show negligence on the part of the motorman is not disputed. And, on the issue of contributory negligence, the evidence might conceivahly be such as to authorize the jury to infer that the signal constituted an invitation to approach the track in the belief that the car was about to stop at 38th Street. But these issues of negligence on the part of the defendant and of Campbell must be determined in the light of the evidence that may be introduced on a new trial. Such evidence may vary materially from that contained in the present record. There is, therefore, no occasion for us to attempt to say whether, in the trial already had, there was sufficient evidence to justify the submission to the jury of the questions whether the signal had the meaning alleged in the complaint, and whether the conduct of the decedent was free from such negligence as to bar the action.

This appeal was first heard by the district court of appeal for the second appellate district, which, after filing an opinion for affirmance of the order, granted a rehearing. On the rehearing, the justices were unable to agree. The original opinion considered, among other things, a point made by appellant with regard to the admission of testimony bearing on the amount of damage. We approve, and adopt that court’s statement and discussion of the point, as follows:—

“The wife of the deceased was permitted, against the objection of defendant, to testify that one of the children of herself and the deceased, a little girl, was crippled in the right arm and had been under the surgeon’s care for seven or eight months; and, that another little girl had a shoulder-blade turned around, that it was so from birth and that she had been doctored for a ‘good many years’ and was still under the doctor’s care. We are of the opinion that this evidence was admissible.

“The courts have not attempted to declare any general rules to be applied in determining the evidence which may be considered by the jury in ascertaining what damages are just in an action of this kind. Even in reviewing the conclusions of the jury in view of the circumstances of the special cases under consideration (Code Civ. Proc., sec. 377) it has been found to be impracticable to designate the particular elements

“While solace for wounded feelings may not be included in the damages awarded, the loss of society, comfort and care to a wife and children, as well as their support, may be considered in so far as they affect the question of pecuniary loss to them by the death of the husband and father. (Beeson v. Green Mountain Co., 57 Cal. 20 , 38; Green v. Southern Pacific Co., 122 Cal. 563 , [ 55 Pac. 577 ].) And so it was held proper for a trial court to instruct the jury that the value of the services of a mother to her children in their nurture and instruction, and in their moral, physical and intellectual training, might be considered in estimating the damage to them by her death, and that the value thereof was not to be determined by the value of such services as rendered by a hired servant, but should be ascertained in the light of the ability and willingness of the mother to perform such services; and also that the pecuniary interest of the children in such services did not of necessity terminate with their arrival at the age of majority. (Redfield v. Oakland Co., 110 Cal. 277 , 288, [ 42 Pac. 822 , 1063].)

“The pecuniary loss suffered by the ‘heirs’ of a person killed, by reason of his death, ‘may be either a loss arising from the deprivation of something to which such heirs would have been legally entitled if the person had lived, or a loss arising from a deprivation of benefits which, from all the

“Much of this kind of evidence so admitted is open to the objection urged by appellant, and which was sustained in the eases of Green v. Southern Pacific Co., 122 Cal. 563 , [ 55 Pac. 577 ], and Mahoney v. S. F. Ry. Co., 110 Cal. 471 , [ 42 Pac. 968 , 43 Pac. 518 ], to wit: that it tends to create a sympathy for, or prejudice in favor of the plaintiffs, but in those cases it was said that the testimony there under consideration could have been offered for no other purpose. ■ The evidence before us cannot be so limited in its effect. The testimony introduced in those cases tended to show, only, that the children of the deceased (plaintiffs) had no means of their own. Had it been shown in addition to this that the children were unable to maintain themselves by work, a different question might have arisen. (Civ. Code, sec. 206.) The obligation of support under this section is held to be cast upon the father of an invalid daughter, although over eighteen years of age, and the wife who is awarded the custody of such invalid in a divorce proceeding is entitled to an allowance for her maintenance. (Anderson v. Anderson, 124 Cal. 48 , 54, [ 71 Am. St. Rep. 17 , 56 Pac. 630 , 57 Pac. 81 ].) Among the necessaries which a father is called upon to supply to his children none is more clearly recognized than proper medical attention. While to the well child, food, clothing, and education, according to the parent’s circumstances, are sufficient, if the child be either a temporary or permanent invalid additional care may be required. Whether or not this shall constitute one of the elements of loss to the family of the deceased must be

“The statutes of some of the other states from which cases have been cited are so unlike our own that these are of little aid. Thus the statutes of the state of Illinois made the ‘wife and next of kin’ the beneficiaries in such an action, and the damages recovered are distributed among them in the same proportion as personal property of a deceased intestate is distributed under the statute for distribution in estates. Following this it is held: ‘The amount to be recovered is what the statute regards as the pecuniary value of the addition to such estate left as the deceased, in reasonable probability, would have made to it, and left, if his death had not been so wrongfully caused.’ (Chicago v. Wodlridge, [ 174 Ill. 330 ], 51 N. E. 701 , 702.) Under such a theory of the action it is apparent that the wage-earning and accumulating capacity of the deceased would be the sole question of inquiry, and that cases decided in such a jurisdiction are so out of harmony, both with our statutes and decisions, they can be given little weight in our consideration. It seems unnecessary to distinguish the cases cited by appellant from Illinois and other states in which similar statutory provisions obtain. It has been expressly held in this state that the wage-earning capacity of the deceased was not the measure of damages. (Skelton v. Pacific Lumber Co., 140 Cal. 507 , p. 512, [ 74 Pac. 13 ].) So, also, an instruction in effect directing the jury to consider and ascertain the losses of father and children respectively by the death of the mother as distinct elements in the lump sum of damages awarded, was held proper in such a ease. (Johnson v. Southern Pacific Co., [ 154 Cal. 285 ], 97 Pac. 520 , 526.)

The order denying a new trial is reversed.

Shaw, J., Angellotti, J., Melvin, J., and Henshaw, J., concurred.