Lininger v. San Francisco, Vallejo & Napa Valley Railroad

The action was for damages for personal injuries as the result of a collision between one of defendant’s electric cars and an automobile in which plaintiff was riding as a guest.

Certain portions of the complaint were stricken out, on motion of defendant, and a nonsuit was granted at the close of plaintiff’s evidence. The complaint was constructed upon the theory that section 486 of the Civil Code applies to electric cars, and the ruling of the court upon the motion to strike out involved that consideration. The section was enacted in 1872 and provides that “A bell, of at least twenty pounds weight, must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road or highway, and be kept ringing until it has crossed such street, road or highway; or a steam whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of $100 for every neglect. . . . The corporation is also liable for all damages sustained by any person, and caused by its locomotives, train or cars, when the provisions of this section are not complied with.” Electric cars .Were hot in existence and it does

In Fallon v. West End St. Ry. Co., 171 Mass. 249 , [ 50 N. E. 536 ], however, -the supreme court of Massachusetts says-: “But we, think that by the- words ‘locomotive engine or train upon a railroad’ must be understood a railroad and locomotive engines and trains operated and run, or originally intended to be operated and run, in some manner and to some extent by steam. -. This, undoubtedly, was the sense in which the -words were, used by the legislature when the statute was enacted ; and we- do not feel justified now in giving to them the broad construction for which the plaintiff contends.”

■We think there .was- no error iff- striking from the complaint the ordinance regulating the movement of trains through the ■city. It constituted evidentiary matter and it was not nece§

A portion of ordinance 460 of said city provides that “No person shall run or propel any railroad car, locomotive, hand-ear, or any train or cars, or any trolley car, in the city of Napa, at a greater rate of speed than four miles per hour within one thousand feet of any drawbridge. ” The trial court construed this to mean “within one thousand feet when, approaching any drawbridge.” We think this is the rational view of the provision. In its enactment the legislative body had in mind the crossing of a drawbridge by a train of cars and the peril that is incident thereto. In the construction of the ordinance, to ascertain the legislative intent, regard must be had. not simply to the exact phraseology but to the general tenor and scope of the legislative scheme embodied in the statute. (Oakland v. Oakland Water Front Co., 118 Cal. 189 , [ 50 Pac. 277 ].) “If the act is susceptible of two constructions, one leading inevitably to mischief or absurdity and the other consistent with justice, sound sense and wise policy, the former shall be rejected and the latter adopted.” (In re Mitchell, 120 Cal. 386 , [ 52 Pac. 800 ].) As stated by respondent: “Section 460 requires a more restricted rate of speed when the car or train is within one thousand feet of any drawbridge, than when it is passing through any other portions of the city, and while the drawbridge and the distance of one thousand feet on either side of it may be in the most sparsely settled portion of the city, and might be located wholly without the congested traffic centers and indeed while the track might be wholly located- on. private rights of way apd be not crossed by any highway or other grade' crossings, yet if the construction sought to be given it were to prevail, the city council intended to limit the speed for two thousand feet, without any reason whatever therefor. Such an ordinance would be void. (Berry v. Chicago etc. R. R. Co., 90 Iowa, 106 , [ 48 Am. St. Rep. 419 , 57 N. W. 680 ]; Evison v. Chicago etc. R. R. Co., 45 Minn. 370 , [ 11 L. R. A. 434 , 48 N. W. 6 ]; Meyers v. Chicago etc. R. R. Co., 57 Iowa, 555 , [ 42 Am. St. Rep. 50 , 10 N. W. 896 ].)” . ."

■It is matter of common knowledge that, , more .or less, frequently, frightful accidents occur .'at these crossings in consequence- of- the draw, being open,; and ..if was to minimize this

Another more serious question remains to be considered. As to the law of negligence involved in the case, there seems to be no serioue controversy between the parties. It cannot be maintained from the evidence that the plaintiff herself is chargeable with contributory negligence. As already stated, she was the guest of other parties and she had no control over the driver of the automobile. She was not aware of the approach of the car until it was too late for her to escape. But if there were a conflict in the evidence as to this, we would, of course, on the appeal from the judgment of nonsuit, be required to give full credit to every circumstance in her favor. Among other things, she testified that she sat on “the left back seat,” that she knew nothing “about the running or management of automobiles,” that she had never been in Napa before, that she knew nothing about the streets or location of the car lines, that she did not remember of either seeing or hearing defendant’s car, that during the entire ride she said nothing to the driver in reference to the manner of driving the automobile, and she could not recall the immediate circumstances surrounding the accident.

The only other theory upon which the order granting the motion for a nonsuit can be justified is that all of the evidence shows that the accident was due solely to the negligence of Mr. Wisecarver, the owner and chauffeur of the automobile. It is not sufficient, manifestly, that the evidence may disclose that his negligence contributed to the accident, as his want of care cannot be imputed to plaintiff. In this respect the law admittedly is, as stated by the supreme court of the United States, in Little v. Hackett, 116 U. S. 366 , [29 L. ed. 652, 6 Sup. Ct. Rep. 391 ]. There the party injured hired a public hack, but there is no difference in principle between that ease and this. Through Mr. Justice Field the court said: “A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, nor prevented from recovering against a railroad company for injuries suffered from a

But it is not denied that this is the law. This feature of the ease may therefore be dismissed from further consideration. The vital inquiry remaining is, Does the record contain any evidence from which a rational inference may be drawn that the negligence of respondent contributed to the accident 1 We think this must unquestionably be answered in the affirmative. The law as to a nonsuit has been so frequently declared as to hardly need repetition. It is fully considered by this court in In re Daly’s Estate, 15 Cal. App. 329 , [ 114 Pac. 787 ]. Nowhere, probably, has the rule been stated more strongly than in the Estate of Arnold, 147 Cal. 583 , [ 82 Pac. 252 ]. The gist of it is that all the evidence in favor of the one resisting the motion must be taken as true, and if contradictory evidence has been given it must be disregarded. In the application of this rule to the evidence we must bear in mind that there are two features involved in the consideration of the question of respondent’s negligence. These relate to the speed with which the car was traveling and the presence or absence of any warning given as the car approached the crossing.

An ordinance of the city limits the speed within the corporate limits to the rate .of eight miles an hour. “Where a train is run at a crossing at a rate of speed in excess of that limited by statute or ordinance, it is in most jurisdictions negligence per se.” (33 Cyc. 976.) That is the law in this state. (James v. Oakland Traction Co., 10 Cal. App. 785 , 799, [ 103 Pac. 1082 ].) But, regardless of the ordinance, it was clearly the duty of defendant to use ordinary care in the operation of its cars for the purpose of avoiding injury to others and not to run them at a rate of speed which an ordinarily careful man would deem dangerous to others. (33 Cyc. 971.) The accident occurred in a business section of the. city and at a point

As to the second point, it is not disputed that the law is as stated in 33 Cyc. 956, as follows: “It is the common-law duty of those in charge of a train of cars, for nonperformance of which the railroad company is responsible, when approaching a public crossing, to give notice of the approach by all reasonable warnings, such as by blowing a whistle, ringing a bell, signal lights, or by such other devices as may be sufficient to give timely warning to travelers of their approach, so as to afford time for all approaching to stop in a place of safety. . . . This duty to give timely warning exists, notwithstanding there is no statute or ordinance requiring it.” There is evidence in the record, which cannot be ignored, of negligence on the part of the railroad company in each of these respects. Without segregating it as to these two features, we proceed to exhibit a portion of said evidence. It was shown by the testimony of the general superintendent that the company required its cars to be run according to a certain schedule or timetable calling for a speed of more than nine miles an hour if they traveled continuously. With a proper allowance for stops it is a fair inference that this schedule would demand a speed of eleven miles or more. Robert Woods, who was near the scene of the accident, testified that the car came down the street at the rate of “about eleven or twelve miles an hour and the automobile was going about eight or ten miles an hour”; that he did not hear any alarm bell at any time from the time the car started at Main street until after the accident, except he thought he heard the bell just at the moment of collision, believing that it was caused by “a mud fender or wheel or something” striking the bell. Mabel Smith also testified that “the car was coming pretty fast” and she did not hear any alarm. Charles Steere was asked the question: “Did you hear any noise at all ? ” and he answered: ‘ ‘ Nothing only the rumble of the car. I think if the bell had rung from where I was standing I could have heard it. I don’t think there was any bell rung at all, because if there was I would have heard it, because I was within five, I guess, or ten feet of the corner. ’ ’

Indulging, therefore, as we must, every favorable inference fairly deducible from the strongest showing made by plaintiff, we must hold as established facts that at the time of the accident defendant was operating its car at an excessive rate of speed and without giving the warning, as it approached the crossing, that the law exacts. From these premises it is at least a rational conclusion that the negligence of defendant constituted a proximate contributory cause of the injury to plaintiff. In other words, giving full credit to the showing made by plaintiff, it is not an unreasonable inference that the injury to appellant was a natural and probable consequence of the wrongful act of the railroad company, and that if the negligence of the driver of the automobile may be regarded as precipitating the disaster, this latter should not be regarded as the sole, independent, but conjointly with the continuous negligence of respondent, as the concurring cause of the accident. (Pa stene v. Adams, 49 Cal. 87 ; Tompkins v. Clay St. Ry. Co., 66 Cal. 163 , [ 4 Pac. 1165 ]; Merrill v. Los Angeles

It is needless to add that if upon the same evidence the case had been submitted and decided by the jury in favor of defendant or if a verdict in favor of plaintiff had been set aside by the court, we could not say that the decision was unsupported, but, in view of the well-established rule in reference to a motion for a nonsuit, we can see no escape from the conclusion that the case was' improperly withdrawn from the jury. The judgment is therefore reversed.

Hart, J., and Chipman, P. J., concurred.