Cate v. Fresno Traction Co.

The facts in this case are correctly stated by the District Court of Appeal ( 295 Pac. 98 ) and are as follows:

“This is an action brought by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company and its motorman, W. E. Gash, and also against William II. Bruce, the driver of the automobile in which Genevieve Brennan, deceased, and her minor son were riding at the time of the collision, which occurred at a railroad crossing on September 20, 1928. The case was tried before a jury and resulted in a verdict against all of the defendants for $20,001; also a judgment of nonsuit in favor of the Fresno Traction Company and W. E. Gash as against the cross-complainant on the cross-complaint of William H. Bruce. All of the defendants have appealed.

"The Fresno Traction Company operates its electric trolley line on regular schedule between the city of Fresno and the town of Pinedale, which is situated some nine miles north of

Fresno, and has been operating such line for a number of years. The line runs approximately north and south between Fresno and Pinedale and is a single track line where it crosses Shaw avenue, which is a paved highway and runs approximately east and west. The paved portion of the highway is twenty-four feet in width and crosses the tracks of the Fresno Traction Company at a right angle. This intersection is about five miles from the city of Fresno in a level and sparsely settled country.

“The deceased, Genevieve Brennan, a woman of thirty-five years of age at the time of the accident, was employed by defendant William H. Bruce, a man of thirty-seven years of age, to do general housework on a ranch upon which he was living and was leasing, which is located' about eleven miles north of Madera. Some two weeks prior to the accident Bruce had taken Mrs. Brennan and her small boy to visit her mother and on the date of the accident had gone for them and was returning them ■ to his ranch. Bruce drove his automobile in a westerly direction along Shaw avenue. The trolley car involved in the collision approached Shaw avenue from Bruce’s right and was traveling in a southerly direction towards Fresno. For 637 feet along Shaw avenue before reaching the car tracks and on Bruce’s right as he approached the crossing and in the direction from which the electric car was approaching there was nothing to obscure Bruce’s nor Mrs. Brennan’s vision of the electric car; the ground was level, no foliage, house or other obstructions of any kind were in the open country on their right as they proceeded towards the rails of the Fresno Traction Company. Three hundred and seventy feet from the tracks facing east and in the direction from which Bruce and the deceased approached the tracks was a standard California State Automobile Association railroad sign. The property lines extend eighteen feet both north and south of the paved portion of Shaw avenue. Twelve feet six inches from the rail and facing the direction from which the automobile was approaching and thirteen feet north of the paved portion of the highway stood a standard railroad crossing sign. The automobile in which Bruce, Mrs. Brennan and the child were riding was an open Ford. Mrs. Brennan sat next to Bruce in the front seat, and the boy was sitting at the right of his mother. From defendant Bruce’s testimony it appears

'.that he and Mrs. Brennan were discussing what he had done while she had been away and a dance he attended. As they approached the tracks and at a distance of about sixty or eighty feet therefrom they both looked to the right and then he looked to the left. He further testified that he saw nothing; that Mrs. Brennan said nothing until just before the crash when she said ‘Lord! There is a car’; that he did not slow the speed of his automobile at any time during his approach to or while he was upon the tracks. As to the motorman giving a warning signal, there is some conflict. Both the motorman and Robert Morris Hogan—the only passenger on the electric car at the time of the accident— testified that the motorman sounded a warning gong, the motorman stating: ‘Somewhere within about sixty feet of the edge of the paved portion of the highway, and I rang my gong . . . and he didn’t check his speed any, and they were looking right at me, and I thought he was going on through, or he might have been aiming to stop; I can’t say that he didn’t check his speed ... I went over and got a little air. Taken just enough air through my air valve to pull the car down so it would give him plenty of time for clearance on through. . . . Well, he didn’t check his speed. I got up within—something about ten or twelve feet of the edge of the paved portion of the highway and he was anywhere from about seven to nine feet east of the street car rail and all of a sudden he slammed on his brakes and swayed just a little to the left, and I had taken all the air I had, then at that time, and I realized there was going to be an accident. ’ The passenger Hogan stated that the motorman rang his gong ‘ten or fifteen feet before we hit the crossing. I couldn’t say just exactly how far’. Defendant Bruce testified that he heard no such gong sounded, and Floyd Lowden, a youth of thirteen years of ' age who was walking along Shaw avenue and whose attention, when he was about one hundred feet west of the car tracks, was attracted by the crash of the collision, testified that he did not hear a gong or bell ring. When the motorman first observed the automobile the electric car was traveling at eighteen or nineteen miles an hour, and when it approached the crossing it had been slowed down to seventeen miles per hour. The speed of the automobile according to defendant -Bruce was from eighteen to twenty-two miles an hour. The automobile was

struck about the center of the highway, shoved along and across the same and up to a telephone pole which stood eighteen feet south of the southerly edge of the paved portion of the highway and a few feet west of the electric car tracks. Mrs. Brennan and her son sustained injuries from which they both died the next day.”

We will first dispose of the appeal of the defendant Bruce, the driver of the automobile in which plaintiff’s intestate was riding at the time of her injury. He contends that the evidence is insufficient to support the verdict of the jury finding him guilty of negligence in the operation of his car at the time of and just previous to its collision with the street-car of his co-defendant, the Fresno Traction Company. We are unable to see upon what theory this appellant can make such a contention with any reasonable hope or assurance that it will be sustained. The appellant Bruce drove upon the street-car tracks either without looking to see whether a car was approaching thereon or, if he did look, with the car in plain view and approaching the highway at a rate of speed which would cause it in all reasonable probability to collide with his automobile as soon as the two reached the crossing. In either event he would be guilty of gross negligence. If he approached the railway tracks without either looking or listening for an approaching car he was, under the circumstances appearing in the evidence, guilty of negligence. There was a standard California State Automobile• Association railroad warning sign on Shaw Avenue 370 feet from the crossing which Bruce could have seen before he reached the crossing had he used reasonable care. The railway tracks were themselves in plain view of motorists using the highway at this point, and there is evidence that Bruce was familiar with the highway and knew of the presence of the traction company’s line of railway at this crossing. It is manifest that Bruce was guilty of negligence if he drove his machine upon the track of the defendant corporation without first looking to see whether he could cross said track with safety. If Bruce looked for an approaching train, and his testimony is that he did, he must have seen it as it could not have been more than 100 feet from the crossing at the time and there was nothing to obscure his vision for a quarter of a mile up the track from the crossing. “The law presumes that a person possessing normal faculties

We will now turn to the consideration of the appeal by the Fresno Traction Company and its motorman, W. E. Gash. These appellants first make the contention that the evidence fails to show that Gash, the motorman, was negligent in the operation of the car which collided with Bruce’s machine, resulting in the death of the deceased and her minor child. The testimony of the motorman as to his actions immediately prior to the collision is at best somewhat equivocal. He testified that he saw the machine in which Bruce and the deceased were riding when the car of the traction company was from 175 to 200 feet from the crossing and that at that time the automobile was possibly a little further from the crossing than was the street-car. The train was traveling about 18 to 19 miles per hour, and the automobile a little faster, possibly 25 miles per hour. Gash testified that at this time he did not pay “much attention to him until I come on up. I was somewhere about 135 to 140 feet, and I threw off my power and was coasting up to the highway.” “Q. Where was he; what was he doing? A. He was still coming on up, all the time. Q. Did he change his speed any? A. Not any at all. . . . Q. You

From this testimony of the motorman it is clear that he saw Bruce and the deceased in an automobile approaching the track of the car line and that he thought the driver in the automobile intended to pass over the crossing in front of the street-car. He accordingly slackened the speed of the car, intending to give time for the automobile to pass in front of the street-car. When at a point 60 feet from the edge of the paved highway he rang his gong, at the same time he noticed that the speed of the automobile was unchecked. It might be well here to note the contradiction in the evidence of the motorman regarding the ringing of the gong at this point. Bruce testified that he heard no gong and the passenger in the street-ear, Hogan, testified that the

These appellants contend, however, that the motorman had the right to assume that Bruce would stop his automobile or turn to one side before crossing the track, and thus

Undoubtedly in the present case the motorman had the right to presume that Bruce would perform his duty and would either stop or turn aside until the conduct of Bruce led him to apprehend the contrary. From the motorman's own testimony it clearly appears that the conduct of Bruce, when the street-car was 135 to 140 feet north of the crossing, was such as to lead the motorman to believe that Bruce was intending to cross in front of the train. He did not assume that Bruce would stop, but, on the other hand, he assumed that Bruce did not intend to stop, and he, the motorman, attempted to regulate the speed of his car in order to permit the automobile to pass over the crossing ahead of the car. The two cases above cited cannot be held applicable to the facts of this case. On the other hand, the facts of this case bring it more nearly within the rule enunciated in Stein v. United Railroads, 159 Cal. 368 , 378 [ 113 Pac. 663 , 667]. In that case the court said: “The evidence then being sufficient to show that the motorman had reason to believe that the plaintiff was likely to be injured, the law imposed upon him the duty of exercising at least ordinary care to avoid the injury. It is clear that within the contemplation of ordinary care and prudence and in consonance with a just regard for the safety and welfare of others, the act required of him was to endeavor to stop his car before a collision occurred. At least, the case was such as to make it a proper question to be deter

Here the evidence shows that the motorman when sixty feet from the crossing was firmly of the opinion that Bruce did not intend to stop before crossing over the street-car track. He had it in his power to resort to his air-brakes to stop his car and thus prevent the collision. Instead of doing so he waited until he was between ten or fifteen feet from the crossing when, for the first time, he made a real attempt to stop his car. It was then too late. Notwithstanding the brakes, the car proceeded across the highway and collided with the automobile just as it reached the ear track. The act of the motorman in failing to stop his car cannot under this evidence be justified or excused by resort to the rule that he had the right to assume that Bruce would stop his machine before crossing the street-car track, as by his own testimony he admits that the conduct of Bruce clearly indicated to him that Bruce did not intend to stop or turn aside before reaching the street-car track. We have referred to the testimony of the motorman as equivocal due to the fact that while he testified as above set forth that he thought Bruce intended to pass in front of the approaching street-car and that he, the motorman, attempted to regulate the speed of his car so as to permit him to do so, in other parts of his testimony he states, in one place that he did not know whether Bruce intended to stop or not before reaching the street-car track, and in still another place he says he thought Bruce intended to stop before passing over the crossing. The jury had the right to accept any one of these conflicting statements as true in passing upon the conduct of the motorman. Evidently they believed that portion of his testimony in which he stated that he thought from Bruce’s actions that Bruce intended to pass in front of the street-car.

It is next contended that the deceased, Genevieve Brennan, was herself guilty of contributory negligence which

Appellants rely with considerable strenuousness upon the case of Barnett v. Atchison etc. R. Co., 99 Cal. App. 310 [ 278 Pac. 443 ], in support of their contention that the evidence in the present action establishes beyond conflict that the deceased although riding in the automobile as a guest was guilty of contributory negligence. We had reason to refer to that case in our decision in Smellie v. Southern Pac. Co., 212 Cal. 540 [ 299 Pac. 529 , 539]. We there held that it had no application to the facts in the Smellie ease, in which case damages were asked for the death of plaintiff’s husband, who was riding as a guest at the time of his injury. We referred to the fact that in the Barnett case, “No mention of the rule applicable to guests is to be found in

A third contention made by appellants is that the court erred in submitting to the jury special findings. The deceased, Genevieve Brennan, left as her heirs at law a husband, from whom she had been separated for some time immediately preceding her death, and four minor children. The children were dependent upon their mother for support. The court, after instructing the jury as to the law applicable to the general facts of the case, gave the following instruction: “In the event you find for the plaintiff, you will fix the amount of damages in one lump sum in accordance with the instructions I have given you and that, of course, would be inserted in the verdict which you brought in. Now, in addition to that, after that is done, in the event you should find a verdict for the plaintiff, and after you have fixed the damages in one lump sum, then at the request of the plaintiff I am asking you to bring some special findings on special issues which have been requested by the plaintiff. ’ ’ It then submitted to the jury five special findings by which it permitted the jury to find specially the amount each particular heir was entitled to receive from the' total damage found. In response to those special findings submitted the jury found that the husband by the death of the deceased had sustained a pecuniary loss of one dollar, and that each of her four minor children had sustained a pecuniary loss of $5,000. A verdict in this form, while criticised, was upheld by this court in the case of Robinson v. Western States Gas etc. Co., 184 Cal. 401 [ 194 Pac. 39 , 43]. The court there said: “The defendant has no interest in the division which the plaintiffs may make among themselves, or which may be made for them, of the damages recovered. The statute contemplates a single recovery for the benefit of the family of the deceased or those of his heirs who are dependent upon him for support. Whether it is divided among them after recovery or not, or how it is divided, are

Finally the appellant, Fresno Traction Company, assigns as error the action of the court in refusing to give certain instructions requested by it and designated instructions Nos. 1, 2, 3 and 4. As to instructions Nos. 1, 2 and 3, it is apparent that they are directed to the question of Bruce’s negligence in failing to exercise proper care in the operation of his automobile just prior to and at the time of the collision. We fail to see how the refusal of the court to give these instructions could affect the ease of the plaintiff inasmuch as the negligence of Bruce was not imputable to the deceased. Instruction No. 4, while directed to the question of negligence on the part of the deceased, was fully covered by other instructions. It was not error, therefore, to refuse to give it.

We are satisfied after a consideration of the entire evidence in this case that it is ample to justify the verdict of the jury finding that the death of the deceased was proximate]y caused by the concurrent negligence of the driver of the automobile and the motorman.

The judgment is, therefore, affirmed.

Preston, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.

Rehearing denied.