Bush v. Southern Pacific Co.

The defendants have appealed from the judgment herein in favor of the plaintiff for personal injuries sustained by her in a railroad grade-crossing accident.

The accident occurred at a country crossing in Los Angeles County at the intersection of the Otterbien Road and the defendant’s railroad. The railroad is straight for a distance of 1653 feet east of the crossing and then curves to the north. The elevation of the track at the crossing is about ten feet lower than at the westerly end of the curve. Adjacent to and along the north side of the railroad right of way is Valley Boulevard, stipulated to he “a heavily traveled boulevard.” The Otterbien Road crosses the railroad in a northerly direction into Valley Boulevard. There were trees along the easterly side of the Otterbien Road, up to a point 63 feet south of the railroad tracks, of such density as to obstruct the view to the east.

Bight witnesses, who were in positions to hear, testified that they did not hear any bell or whistle as the train approached the crossing, except the emergency whistle immediately before the accident. As many other witnesses testified that they heard the regulation whistle or bell or both. As said in appellant’s reply brief, “there being a conflict of evidence upon the question of the giving or failure to give the appropriate signals or warnings, it was for the jury to decide whether or not such signals were given, or that warning signals could be seen or heard.” On appeal it must be presumed that the .conflict in the evidence was resolved by the jury in favor of the plaintiff. (Keena v. United Railroads, 197 Cal. 148 , 154 [ 239 Pac. 1061 ]; Thompson v. Los Angeles etc. Ry. Co., 165 Cal. 748 , 752 [ 134 Pac. 709 ]; Vaca v. Southern Pac. Co., 91 Cal. App. 470 , 474 [ 267 Pac. 346 ]; Badostain v. Pacific Electric Ry. Co., 83 Cal. App. 290 , 294 [ 256 Pac. 576 ]; Jones v. Southern Pac. Co., 74 Cal. App. 10 , 26 [ 239 Pac. 429 ].)

In addition to the estimates of witnesses there is other evidence tending to show that the train was moving at a high rate of speed. A witness for the defendants testified: “I did notice sparks and dust coming from the engine just a few moments before he hit the crossing. I couldn’t say the distance, because I didn’t measure it, but I should say they were somewhere in the neighborhood of 1000 or 1200 feet from the crossing. As near as I can describe it, after the short blast of the whistle, why, the fire and dust began to fly from the rails, and as near as I could see, I thought he was pulling up the ties, and the fire flew from the wheels on the rails; looked just like one streak of lightning had hit the rails; and at the same time the dust rolled up so that you couldn’t see the wheels of the car after that until he stopped.” The train conductor testified: “Before the train stopped it had gone past the crossing approximately 2000 feet, between 1800 and 2000 feet. The fireman testified: “We couldn’t have stopped any quicker, regardless of safety to passengers.” Some of the witnesses testified

It may be conceded, for the purposes of this opinion, at least, that the driver of the automobile in which the plaintiff was riding was guilty of negligence.

Appellants contend that “the evidence discloses that respondent herself was guilty of contributory negligence.” It is deemed sufficient to say that there is not the slightest evidence tending to sustain that contention.

It is contended that it was error to permit witnesses to testify to a conversation between the driver of the automobile and the plaintiff and others who rode in the machine, substantially to the effect that the driver invited the plaintiff to take the ride. The complaint alleges that the plaintiff was riding in the automobile at the time of the accident as the guest of her brother, and the answer denies that allegation. Proof of the invitation was certainly admissible as tending to show that the plaintiff was riding in the automobile as a guest. Such proof' tended to show the relation between the driver and the plaintiff in the same manner that proof of the agreement between any other carrier and his passenger shows the relation between them.

The court instructed the jury substantially in the language of section 486 of the Civil Code, relating to ringing a bell and sounding a whistle on the approach of a railroad train to a crossing, and then stated:

‘‘Whether or not a signal or warnings required.by said code section, coupled with the rate of speed at wh-ieh -the train was running, was a reasonable warning, under -the circumstances shown, to persons about to cross that track, is a question for you to determine after .considering all of the evidence under the instructions and definitions you have been given as to what is ordinary care.”

. “It is for you to determine, from all of the evidence in this case, whether or not the defendant Southern Pacific Company .maintained at the crossing in question, and at the place or places, at said crossing where the same, if any, in the exercise of ordinary care should have .been maintained, such warnings or devices, if any, for the reasonable protec

tion of persons using said crossing, as, in the exercise of ordinary care, should have been maintained at said crossing by said defendant.”

The appellants contend that “the reasonableness of the signals or warnings, or the rate of speed or the maintenance of warning or devices were not questions to be determined by the jury,” but by the legislature or the Railroad Commission.

“There are some authorities for the proposition that when a railroad company has followed the statutory directions as to giving signals, etc., it has discharged its whole duty in the premises, but the sounder doctrine is that the whole duty of a railroad company in respect of signaling the approach of its trains to highway crossings is not necessarily performed by a naked compliance with the statute in that behalf, and that such compliance does not necessarily relieve the railroad company from the necessity of taking such additional precautions as are essential to the safety of passers on the highway. . . . Neither the legislature nor the railroad commissioners can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company at a crossing, but each ease must stand upon its own merits and be decided upon its own facts and circumstances; and for this reason it is usually a question for the jury whether or not precautionary measures in addition to the ringing of the bell or the sounding of the whistle ought to have been adopted to prevent a collision, and whether under the circumstances of the case, the company used reasonable care.” (22 R. C. L. 998.)

“It is . . . held, in'many of the states (in fact, the rule is well-nigh, if not quite, universal) that a railroad company, under certain circumstances, will not be held free from negligence even though it may have complied literally with the terms of a statute prescribing certain signals to be given and other precautions to be taken by it for the safety of the traveling public at crossings. . . . The reason for such rulings is found in the principle of the common law that everybody must so conduct himself and use his own property as that, under ordinary circumstances, he will not injure another in any way.” (Grand Trunk R. Co. v. Ives, 144 U. S. 408 [ 36 L. Ed. 485 , 12 Sup. Ct. Rep. 679 ]; see, also, Panama R. R. Co. v. Pigott, 254 U. S. 552 [ 60

The instructions under consideration state a rule of daily application in negligence cases. Section 113, subdivision (a), of the California Vehicle Act (Stats. 1923, p. 517), provides: “Any person driving a vehicle on the public highways of this state shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway.” This is but a statutory declaration of a common-law obligation which would be equally binding if omitted from the statute, and a failure to comply with it would constitute negligence, even though every express command of the statute were literally obeyed. (Reaugh v. Cudahy Packing Co., 189 Cal. 335 , 340 [ 208 Pac. 125 ]; Gross v. Burnside, 186 Cal. 467 , 469 [ 199 Pac. 780 ].) While the violation of a regulatory statute or ordinance constitutes negligence as a matter of law, “it does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence.” (19 Cal. Jur. 634.) The great weight of authority is to the effect that statutory regulations constitute only the minimum measure of care required of persons in charge of dangerous instrumentalities, and a railroad company, equally with the driver of an automobile, must, in a proper case, submit to the. judgment of a jury the question of whether something more than the minimum of care was required under the facts and circumstances given in evidence.

Considering the high speed of the train, the quietness of its approach and the difficulty of stopping it on the downgrade, the upgrade along the Otterbien Road to the crossing, the obstructed view from that road to the east, and the position of the railroad cross-arms near the track and to the left of the road, it cannot be said as a matter of law that there is no evidence to which the instructions in question are applicable. It is highly probable, however, that the jury based the verdict on the testimony tending to prove that no bell was rung or whistle sounded, and the evidence warrants the conclusion that an emergency whistle

The other grounds urged for a reversal of the judgment which have any semblance of merit are sufficiently disposed of by what had already been said. The complaint contains several specific allegations of negligence which the plaintiff made no effort to prove, and it is not to be presumed that the verdict of the jury was based' on any of them.

The judgment is affirmed.

Thompson (R. L.), J., and Plummer, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on June 26, 1930, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 24, 1930.