Wing v. Western Pacific Railroad

Plaintiff appeals from a judgment of non-suit rendered against him in an action to recover damages for personal injuries. In granting defendant’s motion :for a nonsuit, the learned judge of the trial court stated the reasons therefor in the following language: “The motion for a nonsuit has been made in this case on the ground of contributory negligence of the plaintiff, and this motion,' in the court’s judgment, must be granted. There is no question in my mind "that the plaintiff was grossly negligent in his actions that night. His testimony shows that he came

Appellant contends that the question of his contributory negligence should have been left to the jury. Between 6 and 6:30 o’clock in the evening of October 7, 1917, plaintiff, who was then seventy-one years of age, was walking toward his home in the city of Oakland. He proceeded upon Harrison Street to its intersection with Third Street, where he crossed the two main tracks of the railroad owned and operated by the defendant, and, after turning easterly toward Alice Street, partially crossed a spur-track, then in course of construction, when he was struck by a car operated by the defendant and seriously injured. The spur-track left the main track at Alice Street, curved southwesterly toward the sidewalk on the south side of Third Street, and finally straightened out and ran upon the sidewalk in front of a building, the easterly end of which was seventy-five or one hundred feet east of Harrison Street. The ties and rails of the spur-track had been laid during the two or three weeks prior to the time of the accident, but the track was not ballasted, the gravel for that purpose lying in piles alongside of the track. The car which struck the plaintiff was loaded with ties and was being backed from the main track to the spur-track by an engine attached to the end of the car away from plaintiff. Plaintiff resided upon the south side of Third Street, between Alice and Jackson Streets. He testified that it had been his custom for many years, when going to and from his home to his place of business, to proceed along Harrison Street to the south side of Third Street and then turn down Third Street; that he had been crossing the two main-line tracks since they were laid, nine years previous to.the accident; that on the eve

If plaintiff had been injured by a train or car running on either of the main tracks of the defendant’s railroad, we should have no hesitancy in agreeing with the views of the learned judge of the trial court as expressed in his order granting the motion for a nonsuit. The condition of the spur-track, as disclosed by the evidence above referred to, presents a very different question. [1] A railroad track is in itself a sign of danger. Persons crossing it are charged with the duty to look and listen, because they are presumed to know that the track exists as a means for the passage of trains which may inflict injuries. The failure to take the required precautions before crossing a track which is being used for such purposes is “the omission to do something which a reasonable man guidéd upon those considerations which ordinarily regulate the conduct of human affairs would do,” and is, therefore, negligence as a matter of law. [2] It is manifest, however, that a reasonable man, guided by the considerations above referred to, would not feel called upon to exercise as great a degree of watchfulness for danger from passing trains in crossing a track, which he knew was in the process of construction and upon which no trains had been operated except for construction purposes, as when crossing a completed track

[3] The contributory negligence of plaintiff is to be determined without reference to any negligence of the defendant. (Hutson v. Southern California Ry. Co., 150 Cal. 701 , 703, [ 89 Pac. 1093 ].) While, therefore, the negligent maintenance of the spur-track or negligent operation of the train which caused plaintiff’s injuries cannot be relied upon as absolving plaintiff from the duty of exercising the usual precautions required of a reasonable man under the circumstances, all the facts disclosed by plaintiff’s evidence are material in determining the nature of the danger to which it is claimed plaintiff negligently exposed himself. (Antonian v. Southern Pacific Co., 9 Cal. App. 718 , 728, [ 100 Pac. 877 ].) These facts were: The existence of an uncompleted track; knowledge by plaintiff- of the fact that such track was in process of construction; want of knowledge on his part of any use of such track for transportation purposes; the existence of the gravel pile, which necessarily diverted and commanded his attention; exercise of care in crossing the main tracks upon which he had been accustomed to note the passage of trains; relaxation of such ■care after he had passed such tracks; and injury inflicted by a construction ear being backed upon the spur-track, upon which plaintiff saw no lights or' employee of the defendant on what became the front of the train by reason of its method of operation.

[4] The reasonable construction of plaintiff’s entire testimony is that, while he looked for danger when crossing the main tracks and saw the car standing on the main' tracks about six hundred feet from the crossing, he, nevertheless, considered all danger was passed when the main tracks had been crossed, and took no more notice. “I take care of myself, not for the track, because I -see I pass through the two tracks. I didn’t take no more notice.” In other words, he neither regarded the spur-track in its then condition as a sign of danger nor took the precautions

[5] Plaintiff’s contributory negligence is ordinarily a question of fact for the jury, to be decided by it from the circumstances of each particular case. It is very rare that the court is enabled to say, as a matter of law, that negligence has been shown, and only when reasonable minds might not draw different conclusions from the facts presented. (Se ller v. Market Street Ry. Co., 139 Cal. 268 , 271, [ 72 Pac. 1006 ].) In the case of Zibbell v. Southern Pac. Co., 160 Cal. 237 , 240, [ 116 Pac. 513 , 515], the facts of which were somewhat similar to those of the instant case, the supreme court said that contributory negligence “is a question of law only when the evidence is of such a character that it will support no other legitimate inference than that in the one case the plaintiff was guilty of contributory negligence. . . . But even in such cases, while the question is said and properly said, to be one of law, it is never a question of pure law. The real decision of the question by the court is a decision of fact. When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from these facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plaintiff a recovery. . . . Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury.”

In this case the condition of the spur-track, with its contiguous gravel piles, plaintiff's knowledge thereof, and the fact that the car which struck him was being backed upon the track without lights or warning, áre elements which might cause reasonable minds to differ as to plaintiff’s negligence. In Shearman & Redfield on Negligence, section 476, it is said that the failure to look and listen becomes negligence as a matter of law Only “where there are no excusing circumstances, as where ... he is misled by appear

In the Minnesota case above cited the concurrence of one of the justices is placed upon grounds which áre peculiarly apposite to the facts disclosed by this record. It is there said: “I concur on the ground that it is not, as a question of law, negligence to fail to look or listen before attempting' to cross such a spur-track, leading to a private industry, and used only two or three times a day by a switching train which runs slowly, such track being used only for the purpose <>f making connections with such private industry; that it was a question of fact for the jury whether or not plaintiff’s intestate was' guilty of negligence in failing to look and listen before attempting to cross this spur-track.”

The judgment is reversed.

Langdon, P. J., and Brittain, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied hy the supreme court on July 21, 1919.

Angellotti, C. J.,' Shaw, J., Lawlor, J., and Wilbur, J., concurred.

Lennon, J., did not vote; Melvin, J., and Olney, J., were absent.