Black v. Southern Pacific Co.

An appeal by plaintiffs, who are husband and wife, from a judgment entered upon a verdict in favor of defendant Southern Pacific Company, and from a judgment of nonsuit entered in favor of the other defendants.

On January 19, 1927, plaintiff Florence M. Black was injured when an automobile which she was driving collided' with the standard of a wigwag signal near the tracks of the Southern Pacific Company where the same are crossed by Embarcadero Road in the city of Palo Alto. Embarcadero Road was formerly paved with a strip of macadam 18 feet in width extending from the highway, known as El Camino Real, easterly across the railroad tracks. The wigwag signal mentioned was situated on the east side of the tracks of the company a few feet south of the macadamized strip, which crossed them. Previous to August, 1926, proceedings had. been taken to widen Embarcadero Road, and before the

The complaint alleged in substance that at all the times therein mentioned the defendants other than Southern Pacific Company, Marx, Hare and Byxbee were members of the city council of the municipality; that defendants Marx and Hare were members of its board of public works, and that defendant Byxbee was its city engineer; that prior to January 19, 1927, they paved an additional 20 feet in width of said Embarcadero Road extending to the easterly side of the railroad right of way, approximately doubling the width of the paved portion of the road; that when the work was completed the said signal device encroached on the southerly side of the traveled portion of the highway where the same crosses the right of way and was approximately in the center of the highway as projected across said right of way, and at all times constituted a danger to persons using, the highway; that defendants negligently failed to take any precautions to warn travelers of the danger caused by the acts and conditions described, or to place any barriers or lights, or to give warning of the conditions there existing.

The action was not brought against the municipality, but against its officers named. The law appertaining to the liability of such officers is found in Act 5618, Deering’s General Laws, Statutes of 1919, page 756, which provides that “No officers of any district, town, city, city and county, county, or of the state of California, shall be liable for any damage or injury to any person or property hereafter resulting from the defective or dangerous condition of any public street, highway, bridge, building, work or property, unless it shall first appear: (1) that the injury sustained was the direct and proximate result of such defective or dangerous condition, (2) that such officer had notice of such defective or dangerous condition, or that such defective or dangerous condition was directly attributable to work done by him, or under his direction, in a negligent, careless or unworkmanlike manner, (3) that he had authority and it was his duty to remedy such condition at the expense of the state or of a political subdivision thereof and that funds for that purpose were immediately available to him, and that (4) within a reasonable time after receiving such notice and being able to remedy such condition he failed so to do, or failed to take reasonable steps to give adequate warning of such condition; and then only when it shall further appear that such damage or injury was sustained while such public street, highway, bridge, building; work or property was being carefully used, and that due care was being exercised to avoid the danger due to such condition; provided, however, that this act shall not be construed as enlarging the duty or liability of any public officer.”

The only evidence that the widening or paving of Embarcadero Road was done by any board or officer of the municipality is the testimony of defendant Byxbee, the city engineer, who stated that the work was done for the city by its board of public works as contractor under Byxbee’s direction. This was sufficient to show that the work was done as testified (Foutz v. Los Angeles, 167 Cal. 487 [ 140 Pac. 20 ]), and it is undisputed that the same was completed about September 15, 1926.

It was held before the adoption of the above statute (Act 5618, Deering’s Gen. Laws, Stats. 1919, p. 756), that where the act done is one commanded by the municipality and is inherently wrong both the municipality and the agent will be liable; but if the injury results not from the wrongful plan or character of the work, but from the negligent or improper manner in which it is performed, the one so negligently acting will always be responsible; and a public corporation may or may not be responsible depending upon the circumstances (Perkins v. Blauth, 163 Cal. 782 [ 127 Pac. 50 ]). Here there is no claim that there were defects in the work done, but that, in view of the condition in which the crossing would be left in ease the railroad company made no corresponding changes, the city and its officers, by omitting to make provision for warnings or barriers, rendered the improvement inherently dangerous, and the statute itself imposes a liability if the defective or dangerous condition is directly attributable to work done by an officer or under his direction in a careless or negligent manner.

While the record discloses no evidence that the engineer or any member of the board of public works had knowledge or notice before the accident that the crossing had not been widened, it has been held that where the dangerous condition is due to the negligent act or omission of the officers doing or directing the work it is unnecessary to prove as a condition to liability that they had notice of the condition, and the authority and duty, with funds available, to correct it (Moore v. Burton, 75 Cal. App. 395 [ 242 Pac. 902 ]). Nor should a different rule prevail where a proposed improvement will be reasonably certain to endanger the public unless precautionary measures are taken as a

The statute, however, creates another condition to liability, namely, that it must appear that the damage claimed was sustained while the street was being carefully used and that due care was being exercised to avoid the danger.

It is contended that there was no evidence of due care in the operation of the automobile; and that, on the contrary, its lights were such as to make its operation negligent as a matter of law.

According to Mrs. Black, she had not traveled this road for several months, the night was dark and foggy and it was raining heavily, and, due to atmospheric conditions, she was unable to see more than fifteen feet ahead. She also testified that the ear was stopped at a point about 200 feet from the crossing in order to wipe the windshield, and that she and her son, who was riding with her, looked ahead to avoid danger as they proceeded toward the end of the pavement, but failed to observe the conditions there until too late to prevent the collision.

Section 99 of the California Vehicle Act, at the time this collision occurred, provided: “Every vehicle when upon any public highway within this state during the period from a half hour after sunset to a half hour before sunrise, and at any time when there is not sufficient light to render clearly discernible a person, vehicle or other substantial object on the highway at a distance of 200 feet ahead, shall be equipped with lighted lamps and lighted headlights as herein respectively provided for different classes of vehicles, and subject to such exceptions as are set forth in this act”; and section 101 of the act, that the headlights of motor vehicles should

We are convinced in this connection also that in view of the testimony and the circumstances disclosed by the evidence, which on a motion for nonsuit must be construed most favorably to her, it cannot be said as a matter of law that Mrs. Black was not proceeding with due care, nor that the condition of the lights on her car was such as to negative that conclusion.

For the above reasons we believe that the questions both of the negligence of defendant members of the board of public works and the city engineer, and of the care .used by Mrs. Black in the operation of her car, were properly for the jury.

At the close of plaintiff’s case the court granted a nonsuit as to defendant officers, after which the case proceeded as against defendant Southern Pacific Company. The jury returned a verdict in favor of the company, and from the judgment entered thereon plaintiffs have appealed, claiming that the court erred in certain of its instructions to the jury-

Where the right to open a street across a railroad right of way has been acquired it is the duty of the company at its own expense to make the necessary structural changes, such as placing planks between the rails and two feet outside thereof, and other crossing changes, in order that the railroad may be safely operated, and as a general rule it must maintain such crossings in good condition (City of Oakland v. Schenck, 197 Cal. 456 [ 241 Pac. 545 ]). But it is well settled that a railroad right of way is so far private property as to be entitled to the protection of the Constitution, and that it can only be taken without its consent under the power of eminent domain, a condition precedent to such taking being that provision be made for reasonable compensation to the company (Western Union Tel. Co. v. Pennsylvania R. R. Co., 195 U. S. 540 [1 Ann. Cas. 517, 49 L. Ed. 312 , 25 Sup. Ct. Rep. 133 ]; City of Oakland v. Schenck, supra).

Section 43 of the Public Utilities Act provides that no public road, highway or street shall be constructed across the track of any railroad corporation at grade without having first obtained the permission of the Railroad Commission, and that the commission shall have exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each crossing; and of the installation, use, maintenance and operation of safety devices and appliances (Public Utilities Act, secs. 42, 43). It may also exercise the power of eminent domain in proceedings involving the taking of the property of public utilities, with the power of making awards in such eases (Public Utilities Act, sec. 43; Pacific Telephone etc. Co. v. Eshleman, 166 Cal. 640 [Ann. Cas. 1915C, 822, 50 L. R. A. (N. S.) 652 , 137 Pac. 1119 ]; City of San Jose v. Railroad Com., 175 Cal. 284 [ 165 Pac. 967 ] ; S. H. Chase Lumber Co v. Railroad Com., 212 Cal. 692 [ 300 Pac. 12 ]).

It is undisputed that the traveled portion of Embarcadero Road before it was widened was macadamized and that the same width of macadam extended over the cross

It is clear that a railroad company is not obliged to widen its crossings without an order from the Railroad Commission or to warn travelers upon the public highway of the danger of attempting to pass over its right of way at places other than established crossings. It is also the rule that where an abutting owner has exercised ordinary care in the use of his own property he is not liable for injuries incidentally resulting to a traveler on the highway (29 Cor. Jur., Highways, sec. 443, p. 679; 13 Cal. Jur., Highways, sec. 80, p. 397; Rozell v. Northern Pac. R. R. Co.,

In Barrett v. Southern Pac. Co., 207 Cal. 154 [ 277 Pac. 481 ], relied upon by plaintiffs—which was an action for damages for personal injuries sustained as a result of an automobile striking a stone pier erected and maintained in the middle of the highway as a support for an overhead bridge upon which the railroad was operated—it was held that while the erection of the bridge and pier were authorized by statute it was a question for the jury whether the pier was maintained in such a way as to afford security for life and property where the prevalence of heavy fogs at night in that locality was shown, and there was an absence of lights or other danger signals on or near the pier, which was not painted a color tending to make it visible during foggy weather. In the present case, however, all the things which the court in the Barrett case held to be necessary for proper maintenance had been done. The crossing was lighted; the signal was painted different colors and situated a sufficient distance south of the macadamized way to allow vehicles operated with ordinary care to pass over without danger. Moreover, the instruction complained of referred to conditions at the end of the new pavement on Embarcadero Road and not to the signal device.

What we have said applies equally to another instruction, stating in substance that the company was not bound to anticipate that any person lawfully traveling upon the paved highway as it crossed the tracks would come in contact with the signal device.

By two other instructions the jury was told that a railroad company is justified in placing mechanical devices at a crossing for the purpose of warning travelers of danger at that point, and that if such device be not so placed ás to be an obstruction in the traveled portion of the highway the company cannot be held to be negligent in maintaining it; also that plaintiffs alleged that the signal device was situated in the highway, but if the jury found that it was situated on the private property of the company plaintiffs had failed to maintain their cause in that particular.

The latter contend that while it is admitted that the signal device was south of and not upon the traveled portion of the highway, namely, the macadamized strip which crossed the tracks, the question of its negligent maintenance in the highway was nevertheless one for the jury; further, that there was no evidence that the device was upon the private property of the company, and the second instruction was consequently erroneous.

The complaint alleged that the signal device was situated in the highway; and the burden rested upon plaintiffs to show that fact (29 Cor. Jur., Highways, p. 637); but the record is silent as to how or when the public acquired the right to cross or the extent of the right. So far as shown, this was limited to the way actually in use, namely, the macadamized strip. It has been held that where a highway has been laid out pursuant to statutory proceedings it will be presumed that it was for the full legal width (Lenhart v. Wright, 286 Pa. 351 [ 133 Atl. 495 ]; McGarry v. Runkel, 118 Wis. 1 [ 94 N. W. 662 ] ; Taylor v. Austin, 83 Neb. 581 [ 119 N. W. 1123 ]; Hentzler v. Bradbury, 5 Kan. App. 1 [ 47 Pac. 330 ]; and plaintiffs urge that the same rule applies here, as the statute requires every highway to be at least 40 feet wide (Pol. Code, sec. 2620); but, as held in Mulch v. Nagle, 51 Cal. App. 559 [ 197 Pac. 421 ], this section has application to such highways as are laid out by formal act

The same is true of the second, as the physical facts were sufficient to support a finding that the signal device was situated upon the private property of the company.

Plaintiffs complain of other instructions as to Mrs. Black’s duty in the operation of the automobile, the question and effect of her negligence and the burden of proof in that regard. We agree with plaintiffs that these instructions

For the foregoing reasons the judgment entered upon the verdict in favor of defendant Southern Pacific Company is affirmed. The judgment of nonsuit entered in favor of defendants C. D. Marx, M. H. Hare and J. F. Byxbce is reversed and the same judgment in favor of the remaining defendants is affirmed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on July 16, 1932, and an application by appellants and respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 15, 1932.