Koster v. Southern Pacific Co.

This appeal is taken from a judgment entered by the Superior Court of the county of Santa Clara upon the verdict of a jury awarding the plaintiffs $50,000 as and on account of damages alleged to have been sustained by them by reason of the death of Prank E. Koster, caused by a steam locomotive drawing a passenger train of eight cars, consisting of three diners, two coaches and three baggage-cars, owned and operated by the Southern Pacific Company, negligently colliding with the automobile driven and operated by said Prank E. Koster at a point on said company’s railroad track where the same crosses Keyes Street, at right angles, in the city of San Jose. The road is operated as a commercial steam railroad. Judgment went against both defendants, Southern Pacific Company and its locomotive engineer in charge, Arthur K. Bullard. Sadie Koster is the widow and June and Alice Beverly Koster are minor children of said marriage, the latter being a posthumous child. The deceased at the time of his death was twenty-nine years of age, enjoying good health, and was engaged in the bakery business in the city of San Jose, which earned him $8,000 annually.

The collision occurred at about 4:29 A. M., June 18, 1926. Decedent died from injuries received in said collision some thirty or forty minutes thereafter. His brother, John Koster, a resident of the city of Oakland, whom decedent was attempting to convey to the Market Street station, where the former intended to take passage homeward on a Southern Pacific train departing from said station at 4:45 A. M., was also killed. Said Market Street station is about twenty-five blocks distant from the Keyes Street crossing, the place where the accident occurred.

The important question in this case is whether the decedent violated the rule of caution commonly known as the stop, look and listen rule, which is approved by a long line of decisions of this court, as well as by numerous courts of the land, both state and federal, in the light of all the facts and circumstances of the case presented, and thereby barred his heirs of the right to recover damages on account of his death. Other questions of importance affecting the conduct of decedent and the parties defendant are also present, but they are either subsidiary or relative to the main ques

The general course of appellant’s main tracks through the section of the city of San Jose where they cross Keyes Street is southerly and northerly and the course of said street is easterly and westerly. The train in question was the regular passenger train moving southerly.

Decedent, Frank E. Poster, resided with his family on-Seventh Street, between Keyes and Bestor Streets, approximately three city blocks from the place of' collision. It was the rule of decedent to leave his residence each morning between 4 and 5 o’clock for his place of business, which was located on Second Street. There is uncontradicted evidence, in the record that he was seen to cross the railroad track at Keyes Street at the hours of 4 and 5 o’clock A. M. upon a number of occasions, and from its location with reference to his home and business, from which he made daily trips in his Nash sedan, and the nearness of his residence to said Keyes Street crossing, it must be assumed that he was- quite familiar with said crossing and was aware that a passenger train, traveling southerly, crossed said street at about 4:22 o’clock A. M. each morning. The general course of appellant’s main track through the section of the- city of San Jose in which Keyes Street crossing is situated is on a straight line extending in a northerly and southerly direction.

So far as natural obstacles are concerned, there is nothing to obstruct the view of a person standing at a safe distance from the railroad track at said crossing from seeing a train of cars approaching from the north at a distance of at least 2,000 feet. The morning was clear and the atmospheric conditions for visibility were good. Although the sun rose at 4:48 A. M. on June 18, 1926, and it was practically daylight at 4:29 A. M., it was nevertheless the rule of the company defendant not to extinguish the headlight on the engine until the train arrived at a station some distance south

James B. Cushing, a street sweeper employed by the city of San Jose, crossed the intersection at 3:30 on the morning in question. He crossed "the track going westerly very slowly operating the street-sweeping machine and when upon the side-track he was of the opinion that he was able to see 2,000 feet up the main-track. His view before reaching the

Three witnesses, besides the members of the train crew;' testified to hearing the whistle blow before the crossing was reached. Engineer Bullard testified that the bell was started ringing when the train pulled out of the main station at San Jose and was stopped by him after the engine had toppled to its side upon being derailed. The bell operated automatically by air pressure or power. The fireman set the bell in motion at the main San Jose station and it rang continuously through the suburbs of San Jose until it was-turned oft by the engineer, as above noted. Two whistle blasts, two long and two short, were given before crossing Martha station, the station immediately north of the crossing. at Keyes Street. As to the blowing of the whistle at. the several crossings, the engineer and fireman David were corroborated by the positive testimony- of the train conductor, Conrad, Brakemen Dabbs and Bell and dining-car Chef McEllant of the train crew. These witnesses being inside the train did not notice that the bell was ringing, although one or two testified that it was set in motion at the main station. R. S. Risdon, foreman of the tin plate department of the American Can Company, testified that he was expecting a shipment of tin plate and was listening for the' arrival of the freight train conveying the shipment. He. heard the blasts of the passenger engine, which he located at the crossing first above Keyes Street. Very soon thereafter he heard a crash or unusual noise and went' to. the, Keyes Street intersection. He testified that there was no, car on the siding near the flagman’s station, but there was: a single car some distance up the track near the gate, "that; leads into the American Can Company’s property, as described by other witnesses. Frederick W. Reiff, the’r watchman heretofore mentioned, testified that he was upon the platform of the Pacific Coast Cannery Company at said crossing in the discharge of his duties and he saw the headlight of the engine when the train in question was at Reed?' Street crossing some 3,000 feet up the track and distinctly-heard the blasts of the whistle at that distance. John Otto,r the engineer-for the Vernon-Clay plant, resided on .Martha;

We have made references to the testimony of the several witnesses offered by defendant as to whether or not the bell was rung and whistle blown for the reason that said testimony is affirmative or positive in character as to the actual occurrence of an event in question in contrast with the negative testimony of persons whose attention was not by reason of some special circumstance drawn to a commonplace event associated with the management of trains.

In an effort to demonstrate that a view of an approaching train was completely shut off ' by intervening obstacles to a person occupying the front seat of an automobile at any safe distance from the east rail of the main-track, respondents had reckoned with all possible elements that would tend to sustain their conclusion, such as widths of tracks, distances separating tracks, dimensions and overhang of box-cars and the position of physical objects and their relation to each other. The physical facts speak for themselves, and there is very small doubt that had decedent stopped, looked and listened, as the law required him to" do, he would have been warned at a safe distance from the main track of the approach of said train and the hazard he would assume in attempting to cross the railroad crossing ahead of the train. The obstruction complained against consisted of a box-car approximately 30 feet in length by 6 feet in width at a point 10 feet northerly from a flagman’s station house 8 feet high and 6 feet by 6 feet square. The train was moving up a slight grade under power and there were no other intervening objects except those in dispute to interfere with the usual warnings that a fuel-burning, steam-propelled train moving rapidly over its rails on a clear morning ordinarily gives of its approach. Assuming that the obstructions existed as claimed by respondents, and that the noise at the intersection was so great as to overcome the noise made by the oncoming train,

The rule prescribing the quantum of caution that should be observed by persons crossing railroad tracks has been many times stated by this court without material deviation from the standard laid down in the case last above cited, written by Mr. Justice Holmes of the United States Supreme Court. The principle of law which governs that case is, in some respects, peculiarly applicable to the instant case. It is there said:

“Goodman was driving an automobile truck in an easterly direction and was killed by a train running southwesterly across the road at a rate of not less than 60 miles an hour. The line was straight, but it is said by the respondent that Goodman ‘had no practical view,’ beyond a section house 243 feet north of the crossing until he was about 20 feet from the first rail, or, as the respondent argues, 12 feet from danger, and that then the engine was still obscured by the section house. He had been driving at the rate of 10 or 12 miles an hour, but had cut down his rate to 5 or 6 miles at about 40 feet from the crossing. It is thought that there was an emergency in "which, so far as appears, Goodman did all that he could.

“We do not go into further details as to Goodman’s precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must

The rule which was established in this state a number of years ago and which has been uniformly followed to and including the most recent decisions of this court and the District Court of Appeal is clearly stated in the familiar case of Griffin v. San Pedro, Los Angeles & Salt Lake R. R. Co., 170 Cal. 772 [L. R. A. 1916A, 842, 151 Pac. 282 ], We quote freely from that ease for the reason that it distinguishes the cases usually cited, many of which respondents in the instant case rely upon, as holding that the question of negligence in cases of this class is practically in every case a question for the jury. A reasonable regard for time and space would not justify us in reproducing the review therein made of Cooper v. Los Angeles Terminal Ry. Co., 137 Cal. 229 [ 70 Pac. 11 ]; Bilton v. Southern Pacific Co., 148 Cal. 443 [ 83 Pac. 440 ]; Antonian v. Southern Pac. Co., 9 Cal. App. 718 [ 100 Pac. 877 ]; Eaton v. Southern Pacific Co., 22 Cal. App. 461 [ 134 Pac. 801 ]; Martin v. Southern Pac. Co., 150 Cal. 124 [ 88 Pac. 701 ], and others. To this list might be added the more recent cases, Green v. Southern Pac. Co., 53 Cal. App. 194 [ 199 Pac. 1059 ], Gregg v. Western Pacific R. R. Co., 193 Cal. 212 [ 223 Pac. 553 ], and other cases decided since Griffin v. San Pedro, Los Angeles & Salt Lake R. R. Co., supra. In all cases in which judgments have been upheld, either the injured party stopped, looked

“A person approaching a railroad track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen. (Holmes v. South Pacific Ry. Co., 97 Cal. 167 [ 31 Pac. 834 ]; Green v. Los Angeles etc. R. R. Co., 143 Cal. 37 [ 101 Am. St. Rep. 68 , 76 Pac. 719 ]; Hutson v. Southern Cal. Ry. Co., 150 Cal. 704 [ 89 Pac. 1093 ].) A traveler who is about to cross a railway track at a place where ordinarily the engineer gives appropriate signals of the approach of the train, may not depend upon such custom or even upon a duty, enjoined by law, to give such signals. He has no right not to look or listen because he has heard no such signals. ’ (Erie Ry. Co. v. Kane, 118 Fed. 234 [ 55 C. C. A. 129 ], cited in Hutson v. Southern Cal. Ry. Co., 150 Cal. 704 [ 89 Pac. 1093 ].) The same doctrine is announced in Herbert v. Southern Cal. Ry. Co., 121 Cal. 232 [ 53 Pac. 651 ] in which the negligence of the defendant in leaving open the safety gates at a crossing was not. held to excuse plaintiff’s failure to take any precautions in his attempt to cross the track. (See, also, Heitman v. Pacific Electric Ry. Co., 10 Cal. App. 398 [ 102 Pac. 15 ]; Wilkinson v. Oregon Short Line R. Co., 35 Utah, 110 [ 99 Pac. 466 ]; Bates v. San Pedro, L. A. & S. L. R. Co., 38 Utah, 569 [ 114 Pac. 527 ].)”

The standard of conduct applicable to all persons upon approaching steam railroad crossings, as laid down in Larrabee v. Western Pacific Ry. Co., 173 Cal. 743 [ 161 Pac. 750 , 752], is applicable to the instant ease in that it disposes of a number of points pressed by respondents. It is there said:

“ Nor is it true, as respondent argues, that the deceased’s conduct, otherwise clearly negligent, is relieved from this reproach by virtue of his right to presume that the defendant would not run its train at an excessive rate of speed in approaching this crossing. Nor does the added circumstance that this was a special train in the slightest change the deceased’s legal responsibilities. Railroads are entitled to operate special trains and to operate them at

high rates of speed. Their regular trains cannot be and no one expects them to be always on schedule. With all this the deceased was of course familiar. The statements in Strong v. Sacramento & Placerville R. R. Co., 61 Cal. 326 , and in Whalen v. Arcata & Mad River Co., 92 Cal. 669 [ 28 Pac. 833 ], to the effect that the deceased had the right to rely upon the ‘performance by those on the locomotive of every act imposed by law upon them when approaching a crossing, ’ cannot be considered to be the law of this state as affecting the rights and duties of one about to venture to make a railroad crossing. Such a one is not entitled to rely upon such a performance of duty so as to relieve him from the necessity of looking if he cannot see. Suffice it upon this to cite the later case of Koch v. Southern Cal. Ry. Co., 148 Cal. 677 , 680 [ 113 Am. St. Rep. 332 , 7 Ann. Cas. 795, 4 L. R. A. (N. S.) 521 , 84 Pac. 176 ]; Griffin v. San Pedro, L. A. & Salt Lake R. R. Co., 170 Cal. 772 [L. R. A. 1916A, 842, 151 Pac. 282 ].”

It is conceded by appellants that the defendant company was guilty of negligence in running its train across said crossing at a greater rate of speed than 12 miles per hour as limited by city ordinance. On the other hand, it is claimed by appellants that decedent was guilty of negligence in attempting to drive across said crossing at a rate of speed in excess of the provisions of the Motor Vehicle Act (Stats. 1923, p. 517), which provides that the speed of motorists at railroad crossings shall not exceed 15 miles per hour.

The only surviving eye-witness to the accident was the fireman, John H. David, who was occupying a position on the left-hand side of the cab. The testimony of the train crew was that the train was traveling at a speed of 20 or 25 miles per hour. Respondents’ contention is that the train, being seven minutes late and the speed limit commencing at Valbrick station and onward calling for a schedule of 50 miles per hour, the probabilities that this train was traveling at a much faster rate of speed than testified to by the train crew were strong. It is also argued that the distance the train ran before it was brought to a stop strongly supports their claim that the train was moving at the rate of 60 miles per hour at the time the collision occurred.

A physician in the employ of the defendant company who called to attend the decedent at the hospital soon after the accident testified that the decedent, in response to an inquiry as to his name, replied, “It doesn’t make any difference, it was all my fault; just give me something to put me out of my misery.” Assuming that he made the statement and was conscious as to its effect, it was but a conclusion and we would not be bound by it if the facts and circumstances showed that he was not guilty of contributory negligence.

The respondent relies largely upon an indulgence of the presumption that the jury was at liberty to infer ordinary care and diligence on the part of the decedent from all of the circumstances of the case—his character and habits and the natural instincts of self-preservation—to hold the verdict. This can only be done in the absence of direct proof of the fact. The circumstances of the case alone are sufficient to rebut the presumption invoked. In Herbert v. Southern Pac. Co., 121 Cal. 227 [ 53 Pac. 651 ], as to this issue it was said:

“But the 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 had 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 case the amount of care, as well as the nature of it, has been settled.

“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 ease will 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 precautions. ’ ’

Again, in the case of Pepper v. Southern Pac. Co., 105 Cal. 389 [ 38 Pac. 974 , 976], it was said:

“If he could not see an approaching train because his vision was obstructed ordinary care for his own safety required him to stop in order that his hearing should not also be obstructed, and in any event to make his approach so slowly as to give him complete control, enabling him to stop instantly if occasion required.”

If, as contended by respondents, the noise was so great at said crossing as to prevent a person seated in an inclosed car, as decedent was, from hearing the bell or whistle of a steam locomotive, it was negligence on the part of decedent, who had full knowledge of existing conditions, not to have stopped his motor and opened the door or windows of his car and listened, and if then, granting, for the sake of the illustration, his view was obstructed, he should not, as a prudent person, have attempted to cross unless he was well assured that it was safe to do so. As the court properly instructed the jury, it was incumbent upon him to use the care and caution commensurate with the apparent danger surrounding him when he approached a railroad crossing. If the unfortunate man had observed the rule of conduct which the law prescribed, he would not, in all human probability, have met an untimely death.

“When such a one goes upon a railroad track, he knows he goes to a place where he may be killed, if the train comes upon him before he is clear of the track. He knows that he must stop for the train and not the train stop for him. In such circumstances, if a driver cannot be reasonably sure otherwise whether a train is dangerously near, he must stop, and get out of his automobile, and go forward on foot, to ascertain if a train is approaching.”

Had he done so there can be no doubt that he could have observed the approaching train for a long way up the open track. The decedent was accustomed to cross the intersection in question and undoubtedly was familiar with the fact that no watchman was on duty between 11 o’clock P. M. and 7 A. M. Ignorance of such fact, however, would not excuse the exercise of due care on his part in crossing the track. Gregg v. Western Pac. R. R. Co., 193 Cal. 212 [ 223 Pac. 553 ], presents a case widely different from the instant case on the facts.

From what we have said it becomes unnecessary to discuss the other instructions or the other points made by appellants. We are satisfied that the failure of decedent to observe the standard of care plainly laid down in numerous decisions of this court and other courts of the land bars the right of respondents to recover in the circumstances of the collision.

Judgment reversed.

Richards, J., Waste, C. J., Shenk, J., and Curtis, J., concurred.

Langdon, J., dissented.

Rehearing denied.