Green v. Southern Pacific Co.

This is an action prosecuted by Zoy Green, as administratrix of the estate of Harry Green, deceased, against the Southern Pacific Company and George A. Brown to recover damages for negligence which caused the death of the plaintiff’s husband, who was struck by a “gondola” car at a grade crossing on Osos Street, a public street in San Luis Obispo, the car at thé time being pushed by an engine then being operated by defendant George A. Brown. The verdict of the jury was in favor of the defendant Brown but against the defendant Southern Pacific Company. Judgment was entered against appellant in the sum of $21,500. While a motion for a new trial was pending this amount was, on suggestion of the trial judge and by consent of the plaintiff, reduced to the sum of $15,000, whereupon the motion for a new trial was denied. From this judgment the defendant Southern Pacific Company appeals.

Appellant contends that the verdict was not supported by the evidence in this, that the evidence without conflict established the truth of appellant’s plea that the injury to Harry Green, and his death resulting therefrom, were directly caused by his contributory negligence in failing to look before leaving his place of safety to walk over the track upon which he was killed. Osos Street runs southeasterly from the business section of the city of San Luis Obispo and crosses the railroad tracks at a point north of and near to the railroad station. The railroad tracks at the railroad station lie nearly due north and south. They run northerly on a slight curve, so that within a short distance north of Osos Street their direction is southwest - and northeast. The trains going northerly, toward San Francisco, are known as west-bound trains, and those going southerly at this point, toward Santa Barbara, are known as east-bound trains. The most westerly track of appellant

The home of Harry Green was located in a section of town easterly from these tracks. His place of business was somewhere in the city west of these tracks. That he was well acquainted with the railroad premises and the customary running of trains thereon is not denied. At about twenty or twenty-five minutes after 5 o’clock on the evening of November 20, 1917, Green approached these tracks while on his way toward home. With him were his wife and Mrs. Sarah Peacock. They were all walking, but Green had with him a bicycle. At the time of their arrival at the railroad tracks a freight train was standing on track three. This- train had been broken into two sections, leaving Osos Street open between them. Gianopolis, a car inspector of appellant, was there in charge of an air hose which connected the two sections of the train. The inspector, in reply to a remark of Mrs. Peacock, said, “All right; you got plenty of time to cross.” Thereupon Green and the two women crossed track three and proceeded across track four to the “lead track” five, and thence moving forward, attempted to cross track six, and at that point of crossing the accident occurred.

It must be taken as established by the evidence that there was no watchman or warning signal at this place, and that no bell was rung or whistle sounded, or other warning given, of the approach of any engine or car on track six. At the same time another train was moving in the yard. The freight train on track three was closed up immediately after the three pedestrians crossed that track. There were twenty-three of these cars and one engine. Gianopolis testified that just when these ears came together he heard behind him some kind of a crash and the scream of a

The car which struck Green was being pushed southerly by an engine which faced north and which was pulling with it two tank cars. The train crew consisted of a foreman or conductor (Wilson), an engineer (the defendant Brown), the fireman, Purcell, and Herman and Miller, brakemen. Wilson was on the north end of the north car, Brown in the engine cab, Purcell on the left-hand side of the cab, Miles somewhere north of the engine, and Herman at the rear end of the engine. There was no one at the southerly end of the gondola car, and there does not appear to have been any light there or on the train. The color of the gondola car was black and the time was at dusk or twilight of evening.

This switching train had been made up at rip tracks one and two, and on signal given by Wilson had started from that place toward Osos Street just before the time of the accident. Appellant contends that the train came to a dead stop at the ice-house at a point about 150 feet from Osos Street, whereas respondent contends that the movement of the train was continuous from the start at the rip tracks until the gondola car struck Green. Without quoting testimony we will say here that the evidence is sufficient to support respondent’s position concerning these facts.

If the deceased was guilty of negligence, such negligence must consist of failure to use due care at the moment when he passed from track five to track six. As he was killed instantly the court was deprived of any testimony from him concerning the facts. The only testimony relating to those facts is that of Mrs. Peacock and Mrs. Green. At the time in question Mrs. Peacock was walking at the right of Green (the bicycle between them) and Mrs. Green was on the right of Mrs. Peacock. Referring to the conversation between' those persons, the testimony of Mrs. Peacock is as follows: That after passing track three, Green

[1] Contributory negligence is an affirmative defense which must be established by a preponderance of the evidence. [2] A railroad track is a place of probable danger. For that reason the rule has been established that a pedestrian approaching such a track must both look and listen to ascertain whether there are approaching cars. This is a necessary part of the duty of a person to use reasonable care for his own safety. [3] “But in the absence of direct proof, the jury is at liberty to infer ordinary care and diligence on the part of the plaintiff from all the circumstances of the case—his character and habits and the natural instinct of self preservation.” (Gay v. Winter, 34 Cal. 153 , 164; Larrabee v. Western Pac. Ry. Co., 173 Cal. 743 , [ 161 Pac. 750 ].) In the case last cited, while recognizing the presumption that the deceased exercised ordinary care, it is noted that that presumption is given' weight only in the absence of evidence on the subject of the deceased’s conduct. The court quoted with approval Thompson on Negligence (sec. 401), that this is “an artificial presumption of so weak a character that it is not to be allowed to have the effect of evidence before the jury, where the uncontradicted evidence of the circumstances attending the accident overthrows it.” The law being thus defined, and there being in the present case no testimony tending directly to prove negligence on the part of the deceased, appellant is obliged to rely upon its contention that the uncontradicted evidence of the' circumstances attending the accident necessarily overthrows the presumption of due care

[6] We have noted the fact that defendant’s engineer, Brown, was a codefendant in this action. Upon these facts appellant suggests that because Brown was its agent, appellant is exonerated by the verdict in favor of the agent. In Bradley v. Rosenthal, 154 Cal. 420 , 425, [ 129 Am. St. Rep. 171 , 97 Pac. 875 ], it was decided that where recovery is sought, based upon the act or omission of an agent whom a principal did not direct and in which the principal did not participate, and where, thus, his responsibility is simply the responsibility cast upon him by law by reason of his relationship to his agent, the effect of the judgment in favor of and exonerating the agent is such that the principal is thereby relieved of responsibility. (See, also, Fimple v. Southern Pac. Co., 38 Cal. App. 727 , [ 177 Pac. 871 ].) So in the case at bar, if the claim of negligence as charged against appellant arose solely from the conduct of the engineer in the operation of the engine and cars, without express instructions of appellant governing the' particular manner of running the train, and without other acts of negligence on the part of appellant, a verdict and judgment in favor of the engineer would relieve appellant from liability for such alleged negligence.

The complaint, as amended at the trial, contains the allegation that prior to the time when said freight-car came in contact with the deceased, the defendant corporation carelessly and negligently failed and neglected to place or maintain any flagman or signal-man, or any other person or persons, or tó show or give any signal or signals whatever, at or near said Osos Street, or on or near said gondola freight-car, to warn or notify pedestrians, or other persons, crossing or about to cross said tracks of defendant corporation on said Osos Street, of the approach of said gondola

Appellant replies that there is no evidence that the deceased was misled by the failure of appellant to keep a signal-man there; that for years the deceased had crossed the same track under the same circumstances, and therefore could not have depended upon the presence of a flagman for his safety. Further, in this connection, appellant asserts that no duty was by law imposed upon it to keep a signalman there,. [7] But the law does impose upon a railroad company the duty to use reasonable care, corresponding to the circumstances constituting the probable danger, to avoid injury to persons lawfully traveling upon the public highway crossed by the company’s tracks and trains. It then becomes a question for a jury to decide whether or not it was negligence for the company to run its cars across the highway without providing a flagman or some means of warning to travelers at the place of crossing. [8] And where the facts in evidence prove that usually or frequently there are obstructions which interfere with the opportunity to see moving trains while travelers on the highway are approaching a much traveled crossing, it cannot be held that as a matter of law it is not negligence to run trains there without warning signals other than those usually given by engines and cars. “The question really is as to what is due care where the view of the tracks is obstructed and it is usually left to the jury to say whether, in view of the obstructions, the company has exercised ordinary care in respect to the peculiarly dangerous condition of the crossing; whether ordinarily prudent men would have taken extra precautions; and whether such precautions were taken in the particular case. This rule requiring the adoption of extraordinary means to signal the approach of trains at peculiarly dangerous crossings also has frequent illustration in cases where - trains or engines have been backed over crossings. Thus a railroad company has been held grossly negligent in backing a train across a much frequented crossing without a brakeman at the rear end as a lookout, and ready, in case of danger, to apply the brakes, and thus prevent collision or accident.” (22 R. C. L., p. 990.) In view of these principles, and the negligence pleaded and

[9] The final error claimed by appellant is in the giving of instruction numbered XXV, a part of which stated that if deceased “stopped, looked, and listened . . . and . . . did not hear nor see said locomotive or gondola freight-car being run or operated upon said track, and was not aware of the approach of said locomotive and gondola freight-car, or with the exercise of reasonable care and caution could not see,” etc., the deceased was not guilty of contributory negligence. The words italicized by us direct attention to the point made. Appellant argues that the jury was thus told in substance that if Green looked and did not see, however careless his inspection, however unseeing his eyes, they must find for the plaintiff. Standing alone and interpreted according to strict rules of grammatical construction, this instruction does not state the law correctly and is subject to that criticism. But there were other instructions bearing upon the same subject. The jury were told that if they believed from the evidence that the deceased “did not look or listen for the approaching train when he was on the track next to what is called the rip track, or when he was between said track and the rip track, and further believe that he could have seen or heard the approaching train which struck and killed him, and thereupon remained in his place of safety until the train passed, then the court instructs you that your verdict must be for the defendants.” In another instruction the court said: “A railroad track upon which trains frequently run is itself a warning of danger to any person who has reached the years of discretion and who is possessed of ordinary intelligence that it is not safe to walk across it without the exercise of constant vigilance in order to be made aware of the approach of a railroad locomotive and cars, and thus be enabled to avoid injury. A failure of such person, so situated with reference to the railroad track, to exercise such watchfulness

The judgment is affirmed.

Shaw, J., and James, J., concurred.

A petition 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 11, 1921.

All the Justices concurred, except Angellotti, C. J., and Wilbur, J., who were absent.