Hoffman v. Southern Pacific Co.

This is a rehearing from an opinion rendered in an appeal from a judgment for damages for injuries which were sustained in a railroad crossing casualty. The facts are related in greater detail in the opinion which was rendered in an appeal from a former judgment in the same case reported in 84 Cal. App. 337 [ 258 Pac. 397 ], i

The defendant Southern Pacific Company’s Oakdale branch of its railway system' extends from Merced to Stockton through an open, flat country. According to schedule the regular passenger train left Merced daily at 7 o’clock A. M., but on the morning of the accident this train was about 25 minutes late in leaving Merced. The plaintiff resided on the Cox' Ferry highway, three miles from Merced for more than a year prior to the accident and was therefore familiar with the train schedule. In the locality of plaintiff’s home this highway paralleled the railway track

The law does not require the driver of a vehicle to actually stop under any and all circumstances before crossing a railway track. There is no absolute duty on the part of one to first stop before he attempts to cross the track. In 33 Cyc. 1010 it is said: “By the weight of authority it is not necessarily negligence on' the part of one about to cross a railroad track to fail to stop in addition to looking and listening for trains, unless under the existing circumstances he cannot listen without stopping; but whether such a traveler must stop in addition to looking and listening depends upon the facts and circumstances of each particular case and so is usually a question for the jury. So it is held that a person need not stop before going on the track if he can look and listen effectively without doing so.”

The test as to the existence of contributory negligence on the part of one who attempts to cross a railroad track ahead of an approaching train is the question as to whether under such circumstances a reasonably prudent person would have undertaken to do so. "When the circumstances of a particular case are of such a nature that different conclusions may reasonably be drawn as to the prudence of a person in attempting to cross a railroad track the question of contributory negligence becomes one for the determination of the jury. (Murray v. Southern Pac. Co., 177 Cal. 1 [ 169 Pac. 675 ]; Whitney v. Northwestern Pac. Ry. Co., 39 Cal. App. 139 [ 178 Pac. 326 ] ; Firth v. Southern Pac. Co., 44 Cal. App. 511 [ 186 Pac. 815 ]; 41 A. L. R. 420 , 424, note; 22 R. C. L. 1034, sec. 267; 3 Elliott on Railroads, 358, sec. 1167.) Where there is nothing to obstruct one’s view of a railroad track for a distance from a pro-

The case of Roster v. Southern Pac. Co., supra, determined that the driver of an automobile who lost his life in a railroad crossing collision was guilty of contributory negligence as a matter of law. The facts of that case may, however, be distinguished from those of the present case. The accident occurred in the city of San Jose. The deceased had made daily trips in his automobile over this crossing and was familiar with its dangers as well as the train schedule. The four corners of the street which was intersected by the track at this point were occupied by factory buildings, two of which were in active operation at that time and were creating considerable noise by the run

In this case, while it might be a question ordinarily open to doubt, there is substantial evidence upon which the jury was warranted in concluding the plaintiff’s engine made less noise while the automobile was running, than it would have made while merely idling with the machine stationary. We áre of the opinion that the evidence may be said to reasonably support the implied conclusion of the jury that the engine of the automobile while it was in motion was so noiseless as to impair the hearing of its occupants only slightly, and to, therefore, make it unreasonable to hold that as a matter of law it was negligence not to have actually shut off the gas and stopped the engine entirely before attempting to cross the track. The appellant argues that if the machine had been stopped just before reaching the crossing, the accident would not have occurred. But this is not conclusive of negligence. It is equally true that if the train had been on time the morning of the accident, or ten seconds later than it was, the accident would not have occurred. The real question to determine

The chief element of negligence on the part of the defendant railroad company which is relied upon is the charge that the whistle was not blown and the bell was not rung before reaching the crossing. There was a serious conflict on this subject. The plaintiff testified that up to the time of the crash “there was no whistle blown or bell rang.” He claimed to have been carefully "watching and listening for the train; that before reaching the crossing he looked “back down the track towards Merced to see if the train was coming. Q. Did you see any? A. No sir. . . . Q. State what observation you made in going up the grade? ... A. I was looking for the train all the time. Q. When for the first time did you see any train, if you did see any? A. Not until I got on the track, or almost on it. Q. Then to your best knowledge, where was the train? A. About 80 or 100 feet down the track. ... I saw the headlight, is the first thing I saw. ... I shifted the gears to second as soon as I saw the headlight. ... I stepped on the gas with my foot, just as quick as I shifted. ... I turned the wheel as far as I could ... to the right.” The plaintiff testified that if he had suddenly stepped on the accelerator while the machine was slowly going upgrade -it would have killed the engine. Mr. Hawkins, the companion of plaintiff, testified that both he and the plaintiff looked and listened for the train, and although the machine made no unusual noise, he heard no whistle or bell until immediately preceding the crash. Mr. Walker lived 200 yards from the crossing, and at the time of the accident was preparing to drive his own ear out of his yard on his way to work. He was listening for the train and said he heard “a very indistinct whistle which I presume was about the cement plant,” one mile distant. He had driven out toward

During the process of the trial, on motion, the plaintiff was permitted to amend his complaint to include a demand for damages in the sum of #1500 for medical aid in the performance of a necessary surgical operation resulting from the injuries sustained. The original complaint alleged that the plaintiff was “severely and permanently injured.” There was no abuse of discretion in permitting this amendment. The language of the original complaint was adequate upon which to admit evidence of permanent injuries. (7 Thompson’s Commentaries on Negligence, p. 1009, sec. 7602.) The amendment was sufficient upon which to admit testimony to include the necessary cost of future medical services. (8 Thompson’s Commentaries on Negligence, p. 956, sec. 7327.) In 3 Sutherland on Damages, p. 2781, section 944, it is said: “In estimating the pecuniary loss in such cases all the consequences of the injury, future as well as past, are to be taken into consideration. . . . These are pro

Over the objection of defendants, Doctor Parker, who treated the plaintiff for his injuries, and who subsequently examined him a short time before the last trial to ascertain his physical condition, was permitted to testify in response to a hypothetical question that the plaintiff’s present condition as above stated was the result of the injuries sustained in the railroad crossing accident. The hypothetical question did not fully state the facts involved upon which his opinion was necessarily based. But the ruling was not erroneous, since all of the remaining necessary facts had been previously testified to by this witness and it is apparent that his opinion was based not only upon the hypothetical question which was propounded, but also upon his personal examination, treatment and knowledge of the patient’s condition.

October 24, 1927, this case was set for trial, at which time the plaintiff demanded a jury, according to the amended, court minutes as shown under the date of the court proceedings of March 12, 1928. There is some controversy regarding the demand for a jury on this date. The court minutes, however, must control in this regard. But the case was formerly tried before a jury and reversed on appeal. It seems to be conceded a proper demand for a jury was made for the first trial. It was not necessary to repeat the demand for a jury at the time the ease was finally set for trial. The original demand

. . . ” In the case of Wendling Lbr. Co. v. Glenwood Lumber Co., 19 Cal. App. 1 , 6 [ 124 Pac. 734 , 735], it is said: “It was not necessary to formally renew them (the demand for a jury and payment of fees), since it appears that plaintiff was still relying upon them. The demand must be considered as a continuous refusal to waive the right to a jury. It was not necessary to repeat the demand.”

However, the demand for a jury appears to have been formally repeated on October 24, 1927, when the case was reset for trial. Instead of ordering a jury from the regular panel pursuant to section 214 of the Code of Civil Procedure, the court ordered a special venire under section 226 of the same code. At the time of trial the defendants informally objected to the special venire and requested the court to draw a jury from the general panel, which was denied. The record contains no showing as to the existence or absence of names in the trial jury-box, except that in the colloquy between counsel and the court, it was stated that it was the custom of the court to issue a special venire. The panel was not formally challenged. No evidence was adduced in support of defendants’ objections to the special venire. There is no attempt to show that the defendants were prejudiced by the trial by jurors drawn by means of a special venire. It is the custom and preferable practice to order a trial jury to be drawn from the regular panel. (Amos v. Superior Court, 196 Cal. 677 , 682 [ 239 Pac. 317 ].) In the absence of a formal showing that a special venire was not necessarily drawn pursuant to the specific authorization of section 226 of the Code of Civil Procedure, it must be assumed there was no abuse of discretion on the part of the court and that the denial of defendants’ motion was not prejudicial or erroneous. (Estate of Wall, 187 Cal. 50 , 54 [ 200 Pac. 929 ].)

After the jury had been impaneled and during the process of the trial the defendants moved the court to discharge one juror by the name of Mary Hayes on the sole ground that she was the aunt of a clerk who was employed

The appellants have cited 53 assignments of alleged misconduct of counsel for plaintiff in the process of trial. Most of them consist of interruptions of counsel on cross-examination with the evident purpose of correcting what was assumed to have been misstatements or misinterpretations of the evidence of a witness; some of them do contain suggestions as to the answers of witnesses under examination. It must be conceded some of these assignments of misconduct do. illustrate the prevailing practice of interrupting the orderly trial of a case, frequently resulting in distracting contests of wits or zeal between counsel and an ignoring of the authority of the trial judge, to whom all such conflicts should be addressed. Probably the most flagrant transgression occurred in the examination of prospective jurors on the voir dire. Several jurors were asked if they would become prejudiced if it should appear that a verdict was secured by the plaintiff on a previous trial, and that the judgment was reversed on appeal. The purpose of these questions is apparent. It is a common fault to permit counsel in the examination of jurors to resort to argument, prejudicial inferences and theoretical application of the law. However, the jury were subsequently furnished complete knowledge of the previous trial by the abundant use of the transcript of the former trial, on the part of respective counsel, for impeachment purposes. Moreover, upon objection, the court instructed the jury as follows: “The jury are here for the purpose of trying this case right now, the same as if it never had been tried at all, that is their province and their duty to regard it in that way, and you are to act upon the evidence as it comes in here.”

Also, in the court’s charge to the jury, they were instructed to the effect that the judgment must be rendered solely upon the evidence adduced at the trial. Finally, the defendants failed to request the court to instruct the

The appellant has assigned some sixty-five specifications of alleged errors in the course of the trial, most of which are addressed to the admission of evidence. After an examination of the record as to each assignment, while it appears that liberal latitude was allowed the plaintiff in examination of witnesses and some technical errors in ruling exist, we are of the opinion there is nothing so prejudicial as to' require a reversal of the judgment on this ground. Regarding the second assignment, it may have been a conclusion for Hawkins to say that if the headlight of the engine had east rays of light along the track in front of the automobile, he could have seen them. There was no harm in permitting the answer. At most, it was only a question of how far the rays from the headlight of an engine would act as a warning in a dense fog. This would depend on the intensity of the light and the density of the fog. The common judgment of jurors must make allowance for such uncertainties in view of the physical conditions which appear to exist under the circumstances. There was no error in permitting the plaintiff to show the nature of the soil at the crossing. Since gravel and dirt were found in his wounds, it tended to show the seriousness of his injuries. The nature of plaintiff’s employment as a well digger, and the cost of hiring a man to take his place while he was incapacitated from his injuries, tended to establish the measure of his damages. The evidence of plaintiff’s subsequent injury from a blow on the head was not competent, unless it may have tended to show he was more susceptible to injury on account of the sensitive condition of his head owing to the fracture of his skull. It was, however, not prejudicial. Before permitting a witness to describe the position and condition of the automobile as it lay in the ditch at the crossing 24 hours after the accident, it should have been shown that no substantial change occurred in the meantime. But the machine was completely demolished by the collision. There was no contention to the contrary. It was stipulated that the reasonable value of the machine was $200. There was, there

The defendants have challenged the giving, refusing and modifying of numerous instructions. To review each of these instructions would extend this opinion to unwarranted length. The objections to several of these instructions are covered by the principles of law heretofore announced.

We find no prejudicial error in the charge to the jury, with the exception of one instruction which was given at the request of the plaintiff, as follows:

“It is not necessary that plaintiff prove all the allegations of negligence set forth in his complaint in order to recover. The proof of any one is sufficient. Therefore, even if you may find that the whistle was blown or the bell rung, as required by law, still, if you find that the train was being operated at a dangerous and excessive rate of speed, and that by reason thereof the accident occurred, and that the injuries of the plaintiff were the proximate result thereof, such proof is sufficient to entitle plaintiff to recover damages in this action, providing that the plaintiff himself did not proximately cause or contribute to said injuries by any negligent act of his own.”

We are convinced that the giving of this instruction constituted prejudicial error which requires the reversal of the judgment. The chief assignment of negligence and the only one that finds support in' the record sufficient upon which to uphold the judgment even upon the principle governing the existence of a conflict of evidence, is the claim that the whistle was not blown and the bell was not rung as required by law when the train was approaching the crossing. By means of the foregoing instruction the jury was charged that a judgment for plaintiff might be based alone upon a finding that the train was running at an excessive rate of speed at the time of the accident, even though the jury determined that the whistle was blown or the bell rung as required by law. There are no facts or circumstances in the present case which will warrant this finding of negligence, unless it may be said that the

In the ease of Henry v. Boston & Maine R. R. Co., 125 Me. 366 [ 134 Atl. 193 ], it was held that a passenger train which was running at a speed of 40 miles an hour on a . foggy day, and sounding the statutory signals at a crossing in a country district, was not guilty of negligence for failure to slacken its speed. In that opinion it was said: “The railroad is chartered to carry passengers at a high rate of speed. Unless it did so carry them, it probably would not carry them at all.” It is further said the presence of fog “should admonish the traveler upon the highway to exercise greater vigilance and caution in approaching a railway crossing. ’ ’

It is true that the presence of fog or unusual climatic conditions which obscure the view or impede the hearing makes it more important, to blow the whistle or ring the bell of an engine as a warning upon approaching a country crossing. Such warning signals are ordinarily deemed to be adequate notice, and a train is not required to stop or slacken its speed at country crossings merely because of the presence of fog.

In the case of Pennsylvania Ry. Co. v. Stegaman, 22 Fed. (2d) 69, it was also said that when statutory signals were

There are a few eases reported in the southern states wherein it has been held that the speed of a railway train must be so regulated when traveling in a fog as to enable it to be stopped within the radius of its headlight. These cases are usually accompanied by facts indicating that the location of the crossings where the accidents occurred were particularly dangerous on account of heavy traffic, dense population or the presence of physical obstructions to sight or sound. Except for such modifying dangerous conditions, we would not be able to subscribe to such a doctrine. It would seem absurd and destructive of the usefulness of railroads as common carriers to hold that trains must poke along in an open unobstructed country through a fog or snowstorm at a rate of speed which would permit the stopping of a heavy passenger train within the distance that the rays of its headlight were projected. This would often be a physical impossibility, as is demonstrated by the evidence in the present case. The plaintiff said he first saw the headlight when the train was but 80 to 100 feet -away. The engineer admitted that his headlight disclosed a view of the track only 120 feet ahead of the tender. The emergency brakes were immediately applied and the train rolled 500 feet before it was brought to a stop.

While it is true that facts and conditions may exist which will warrant the submission to the jury of the question of negligence which is associated with excessive speed regardless of the sounding of the whistle or bell, no such circumstances appear in the present case. Since the jury were told that their verdict might be based upon a theory

Accordingly, the judgment is reversed.

Finch, P. J., and Plummer, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on November 14, 1929, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 9, 1929.

Langdon, J., dissented.