Fisher v. Southern Pacific Co.

Appeal by Edith Fisher and Ralph W. Fisher, her husband, from an order of nonsuit and judgment

The action was brought by appellants to recover damages on account of personal injuries received by appellant Edith Fisher, alleged to have been caused by the negligence of respondent. Respondent denied the alleged negligence and pleaded the negligence of appellant, Ralph W. Fisher, as a proximate contributing cause of the damage alleged.

The evidence in substance was as follows: On January 3, 1921, at about 3:40 o’clock P. M., appellants were traveling in an automobile driven by Ralph W. Fisher in a southerly direction on a paved highway at a point near Maxwell, in Colusa County. The right of way and tracks of respondent run parallel with the highway north and south at the point mentioned, the westerly line thereof being the easterly line of the right of way of the highway. On the date mentioned respondent was engaged in burning dry weeds and tules which had grown upon its right of way between the tracks and the east line of the right of way for the highway, and in so doing burned grass growing along the east line of the paved portions of the highway, causing smoke to arise and drift over and across the pavement, obscuring at times the vision of those traveling thereon. The highway was undergoing repairs, and there had been placed a sign some distance north of the point mentioned stating the fact and that its condition was “dangerous but passable,” which sign was seen and read by Fisher. The paved portion" of the highway at the places mentioned herein was sixteen feet wide. As appellants approached the section of the railroad right of way being burned, smoke was drifting therefrom to the west across the pavement, Obscuring vision to some extent, and when they arrived at a point about one hundred feet north of the place of the accident hereinafter described a cloud of smoke from a thicket fired by respondent suddenly enveloped them, making it impossible for them to see in the direction in which they were going farther than the front of the hood of the automobile. To this point Fisher had been driving at a speed of about fifteen miles an hour. He knew that another automobile was following, but did not know at that moment its distance in the rear. A space

The ear approaching from the rear was in fact about five hundred yards away at the time appellants were enveloped by the smoke and became conscious of the danger of proceeding. At a point between seventydive feet and one hundred feet north of the place of collision appellant Ralph W. Fisher could see the flames through the smoke, which were distant fourteen feet from the edge of the pavement, but could not see objects ahead of the automobile.

The motion for nonsuit was granted on the ground of lack of evidence showing negligence on the part of respondent, and on the further ground that, assuming such negligence, the only reasonable conclusion from the evidence was that Ralph W. Fisher also was negligent, and that such negligence was imputable to Edith Fisher and was a proximate contributing cause of the injuries and damage alleged.

[1] In view of the facts known to- respondent and those which should have been apparent to it' before and at the time the thicket was fired—the position of the standing

[2] It is contended by respondent that from the conduct of appellants but one reasonable conclusion could fairly be arrived at by the jury, namely, that the act of appellant Ralph W. Fisher in proceeding through the smoke at a rate of speed not permitting the stopping of the car quickly enough to prevent a collision, or, if a collision occurred, that it would be of so slight a character as not to entail injury to the occupants of the automobile, was, in view of his consciousness of the danger of proceeding, negligent and a proximate contributing cause of the injuries and damage suffered.

We may admit that such conduct standing alone would constitute negligence as a matter of law; but we are also of the opinion that from the situation presented to appellant Ralph W. Fisher, namely, his apprehension of danger from the rear, the obstruction of vision by the smoke, the heat and sight of the flames—calculated to induce excitement and confusion of mind, the jury might fairly and reasonably have concluded that while actual peril did not exist the driver had reasonable ground based on appearances for believing that such peril did exist, and that his course of action in proceeding in the manner and at the rate of speed which might be inferred from the evidence was such as an ordinarily prudent man might reasonably have adopted under like circumstances (McRae v. Errickson, 1 Cal. App. 326 , 329 [ 82 Pac. 209 ]; Gibson v. Kennedy Extension Min. Co., 172 Cal. 294 , 301 [ 156 Pac. 56 ]). It is our opinion that the case should have been submitted to the jury and the motion for a nonsuit denied.

Knight, J., and Tyler, P. J., concurred.

Respondent’s 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 July 7, 1925. -