Gregg v. Western Pacific Railroad

Appeal from a judgment of nonsuit in an action by appellant to recover damages from respondents for injuries sustained by the former while driving an automobile by reason of being struck by an engine drawing a train of cars, which, it is alleged, was operated by respondents in a careless and negligent manner.

A single track of the Western Pacific Railroad Company, a steam railroad, occupies a position on East 12th Street, a few feet south of the center line of said street, in the city of Oakland. Its course through Oakland is in an easterly direction. Twenty-third Avenue, which extends northerly and southerly, intersects said East 12th Street at a right angle. The San Francisco-Oakland Terminal Railways Company, with its termini in Oakland and Alameda County, operates a double-track electric system over and along said avenue. The place where the accident occurred is within quite a busy suburban business section of said city of Oakland. At the time of the injury the Western Pacific train was moving in a westerly direction and the automobile was traveling southerly.

The east property line of Twenty-third Avenue northerly from East 12th Street is entirely occupied with business buildings, which shut off the easterly view of respondent company’s railroad track, except as the line of vision is broadened by moving southerly upon the northerly property line of East 12th Street. Business houses occupy the northeast corner formed by said intersecting streets and continue easterly along the property line of East 12th Street for some distance. A station-house for the accommodation of a flagman or watchman, whose duty it was to give warning signals to persons and to the traffic moving along East 12th Street at the point where it is intersected by Twenty-third Avenue of approaching trains moving either easterly or westerly across said East 12th Street, occupied a position about six feet south of the building line along East 12th Street and eight feet east of the property line of Twenty-third Avenue if projected southerly, leaving a passageway

For a period of about six months prior to the collision Bast 12th Street had been in a state of repair. The travel was along the northerly side. Trenches eighteen inches in depth and one foot in width had been dug along the outside of the north rail and ties were piled near by. These trenches led up to within eighteen inches of the rails of the electric tracks, and vehicles in crossing Bast 12th Street were compelled to keep within the limits of the street-car tracks, thus requiring care and attention on the part of drivers in directing automobiles through a narrow passageway. Very near the moment that the automobile was struck an electric ear operated by the San Francisco-Oakland Terminal Railways Company, and moving northerly, had crossed the rails of the Western Pacific track. This car was forty feet in length and was crowded with passengers so densely as to entirely obstruct the view of objects on the opposite side of said car.

It is important to keep in mind from the outset the well-established rules of law which must control this, court in determining whether or not the motion of nonsuit was properly granted. In so doing we must view with reasonable favor the evidence offered in support of appellant’s case. [1] “Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiff. Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to the plaintiff. If contradictory evidence has been given it must be discarded. (Estate of Arnold, 147 Cal. 583 [ 82 Pac. 253 ].) [2] The plaintiff must be given the benefit of every piece of evidence which tends to sustain his averments and such evidence must be weighed in a light most favorable to plaintiff’s claim. (Anderson v. Wickliffe, 178 Cal. 120 [ 172 Pac. 381 ].) [3] Evidence whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative strength, and any question arising from the fact of variation between the evidence of the witnesses cannot be raised or considered. [4] The evidence must be taken most strongly against the defendant, and if the plaintiff has introduced proof sufficient to make out a prima faeie case under the allegations of his complaint, the motion, if made upon the close of the case, should be denied. (Bush v. Wood, 8 Cal. App. 647 [ 97 Pac. 709 ]; In re Daly, 15 Cal. App. 329 [ 114 Pac. 787 ]; Wasserman v. Sloss, 117 Cal. 425 [ 59 Am. St. Rep. 209 , 38 L. R. A. 176 , 49 Pac. 566 ]; Hoff v. Los Angeles Pacific Co., 158 Cal. 596 [ 112 Pac. 53 ]; Lassen v. Southern Pac. Co., 173 Cal.

In the light of the foregoing rules the evidence must be examined. Learned counsel for respondent have rather assumed a contrary position. To illustrate: Appellant, upon insistent questioning, hazarded an estimate as to the width of an open space which was rapidly closing as the electric car and the automobile approached each other from opposite directions, and through which opening appellant momentarily looked easterly in observation of respondent’s track, and through which opening he claimed to have had an unobstructed view of said track for a distance of about 150 feet. It is urged that the lines of vision limited' by an open space of but five and one-half inches in width, as estimated by appellant, rendered it impossible for him to have observed the track for so great a distance as 150 feet. For the purposes of this motion the extent of the view must be accepted and the space through which it was made must be widened to accommodate itself to the most favorable advantage of appellant, and, if necessary to that end, it must be entirely discarded.

This case falls within the rule controlling guarded crossings, and the evidence must be considered in its relation to those rules and not confined solely to the rules which govern unguarded crossings such as were applied in Herbert v. Southern Pac. Co., 121 Cal. 227 [ 53 Pac. 651 ], Green v. Southern Cal. Ry. Co., 138 Cal. 1 [ 70 Pac. 926 ], and in many subsequent cases dealing with facts analogous to the facts of those cases. That is to say, each case must be considered and decided in reference to the facts peculiar to it.

Observing the rules of construction which apply to motions of nonsuit, the facts in the instant case may be thus stated. Appellant, who was employed as a steam-fitter by the San Francisco Shipbuilding Corporation, was, on the morning of November 27, 1920, on his way to said shipyards pursuant to his employment, which yards are situate near the foot of said Twenty-third Avenue, in the city of Alameda. His course to and from his work was along said Twenty-third Avenue, which crosses East 12th Street, the place of the accident. Twice a day, morning and afternoon, appellant had driven his Overland automobile, of the touring-

The question presented is whether appellant, under all the facts and circumstances of the particular case, was, as a matter of law, guilty of contributory negligence in proceeding to cross said railroad track without listening or looking 'more effectively or intently than is shown, or by stopping, if circumstances required it, before crossing said railroad track.

Conceding respondent Railroad Company to have been negligent in its omissions, was appellant also guilty of negligence under the exigencies of the situation by a failure to exercise ordinary care and prudence in attempting to cross said track? [5] If the evidence in the record and also the circumstances of this case áre such that the question of whether or not appellant was negligent in approaching the crossing is one upon which reasonable men might well disagree, then the motion for nonsuit should not have been granted. (Hoff v. Los Angeles Pacific Ry. Co., supra.)

The appellant had crossed the steam railroad track at the point in question daily for several months preceding the injury. During all of that time he had never seen or known of a train passing along Bast 12th Street at the hour he was struck. He knew that a signalman was stationed at said crossing whose duty it was to warn the traffic of approaching trains by giving signals from a position near the center of the intersecting tracks. He was not aware of the absence of the watchman or flagman from his post of duty and supposed that his absence from the signal point was an invitation, as it usually was, to cross and that it was safe to do so. No whistle was blown or bell rung by the engineer in charge of the train. Coupled with these circumstances he observed

[6] We are not prepared to say as a matter of law under the circumstances of the situation that appellant in determining his action had no right to take into consideration or to be influenced in any degree by the movement of the traffic or by the investigation made by the conductor of the electric car as to its being reasonably safe to cross said track a second or two after the car had passed over it upon the invitation that was being extended by the absence of a warning.

Respondent places much reliance upon what is said in the case of Jones v. Southern Pac. Co., 34 Cal. App. 629 [ 168 Pac. 586 ], to sustain the judgment of nonsuit. There the rule of Chrissinger v. Southern Pac. Co., 169 Cal. 619 [ 149 Pac. 175 ], and Griffin v. San Pedro, L. A. & S. L. R. Co., 170 Cal. 772 [L. R. A. 1916A, 842, 151 Pac. 282 ], to the effect that: “Where the standard of conduct is so obvious as to be applicable to all persons and the plaintiff has failed to measure up to that standard, under the circumstances shown, he is not entitled to have his case go to the jury, ’ ’ is re-stated. It is true that that case involved as an element the question of an absent flagman. But the facts of that case are not the facts of this case The elements which make up the case now before us and which have been stated were not present in Jones v. Southern Pac. Co., supra. There the view of the plaintiff was unobstructed and for a distance of thirty feét from the nearest rail of the track he had a plain view of defendant’s train and his conduct under the simple circumstances of the case was inexcusable. If he had looked at all he would have seen the peril into which he was blindly driving. Other opportunities of protection were open to plaintiff in that case which are not shown in the present case. We do not here hold that one who blindly

[7] It is true, as has often been stated, that a railroad crossing is itself a place of danger and is an effectual warning of danger which must always be heeded and the exercise of ordinary care in traveling over such place is not excused by the negligent omission of the railroad company itself to exercise reasonable care. [8] But it is also true that a railway company will not be permitted to encourage the public to relax its vigil as to the dangers that lurk in railroad crossings by assurances that the danger has been removed or minimized by the adoption of safety devices and measures and at the same time hold a person to the same quantum of care as if no such safety measures had been provided. In Koch v. Southern Cal. Ry. Co., 148 Cal. 680 [ 113 Am. St. Rep. 332 , 7 Ann. Cas. 795, 4 L. R. A. (N. S.) 521 , 84 Pac. 176 ], it is said that the adoption of safety gates or any other appliances by a railroad company for the protection of the public does not absolve the public from all duty of taking care of itself. “A person is still required to exercise due and ordinary care, and while the quantum of care which will be reasonable may be less where the gates are provided and relied upon by the traveler, still the gates themselves are not an assurance and a warranty such as to justify a traveler in gmng blindly ahead in total disregard of all ordinary precautions, as did the plaintiff in this instance.” (Italics ours.) Continuing, it quotes the following from Ellis v. Boston etc. R. R. Co., 169 Mass. 600 [ 48 N. E. 839 ]: “The raising of the gates was, no doubt, a circumstance which justified the plaintiff in starting to cross the railroad when he did, and he had a right to expect that if any engine or train was approaching the crossing on the inbound track, a whistle would be sounded or a bell be rung. But in attempting to cross the railroad he was bound in the exercise of ordinary care, to himself exercise his own powers of observation, and to take thought for his own safety; and

The general situation as presented by the instant case is different from the situation stated in the case of Koch v. Southern Pac. Co., supra. To the limited elements named in that case may be added the further facts that appellant was traveling at a very slow rate of speed and was listening and looking as herein described, and that he entered upon the track immediately after an electric car crowded with passengers had crossed it after investigation made by the conductor as to approaching trains. Other elements which must be considered are that the train appeared from around a curve and could not have been seen at any point near the crossing until it had approached within nine hundred or a thousand feet of said crossing; said train was not running on schedule time, but was a belated or an extra train; that the passageway over which appellant was compelled to travel had been narrowed by repairs that were being made to respondent’s track which required extra care to be given by the driver to the way over which he was passing. If a reasonably prudent person situated as appellant was situated, and seeing what he then saw and knew, would have been justified in acting upon appearances as appellant assumed to do, or, if reasonably prudent men would disagree as to whether appellant exercised ordinary care in the premises, then the case should have gone to the jury. The invitation to cross, the failure to ring the bell or sound the whistle, as required by the provisions of section 486 of the Civil Code, are elements which must be considered with all the other facts and circumstances of the entire case. The case of Koch v. Southern Pac. Co., supra, is not inconsistent with anything said in Wyseur v. Davis, as General-Director of

[10] The extent to which a traveler may rely upon the assurance of safety arising from the absence of a flagman from his post of duty on the presumption that it is safe for

“It has often been said by this court that it is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. As a general rule, it is a question of fact for the jury, an inference to be deduced from the circumstances of each particular ease, and it is only where the deduction to be drawn is inevitably that of negligence that the court is authorized to withdraw the question from the jury.” (Hoff v. Los Angeles Pacific. Co., supra, quoting from Sellers v. Market St. Ry. Co., 139 Cal. 268 [ 72 Pac. 106 ].)

[11] We are of the opinion that the case should have been submitted to the jury under appropriate instructions by the court.

The judgment and order of nonsuit are reversed.

Lawlor, J., Lennon, J., Waste, J., Myers, J., Richards, J., and Wilbur, C. J., concurred.