Phillips v. Pacific Electric Railway Co.

This is an appeal from a judgment of nonsuit granted solely upon the ground

The respondent railroad corporation owns and operates double tracks of electric trolley car lines adjacent to and parallel with the ocean shore from Santa Monica southerly through and beyond Venice. In the vicinity of Venice, where the accident occurred, the trolley right of way is about sixty feet in width, and at this point contains three lines of tracks, the rails of which are spiked to ties which rest upon loose ocean shore sand which is common in this vicinity. The rails extend above the ties a distance of about three inches. The main north and south bound tracks are some sixteen feet apart at this point. Along the extreme easterly portion of this right of way a third track has been maintained for more than ten years as a side-track, upon which it was the custom of respondent railroad company to station cars during the night, and at times when the traffic did not demand their immediate use. Appellant was aware of this custom. Parallel with this line of side-tracks, and three feet easterly thereof, was a sidewalk which was commonly used by pedestrians. This district was somewhat thickly settled, and was laid out in streets and blocks, with business buildings and dwelling-houses adjacent to the car line on either side. Clubhouse Avenue extended from the ocean on the westerly side of the tracks, at right angles to the trolley way, opposite which there was no regular paved or planked crossing of the tracks. Here there was a break in the continuation of this avenue, which resumed its course beyond the tracks about a hundred feet northerly. Between the main tracks at a point about a hundred feet southerly from the westerly extension of Clubhouse Avenue was a railway station where the electric trains customarily stopped for the accommodation of passengers. The railway right of way was not paved or planked for pedestrians at this crossing.

Appellant was thirty years of age, active, alert, and possessing good faculties. For fifteen years he had resided on Clubhouse Avenue west of the railroad tracks. In returning home from Venice, it was his custom to follow the sidewalk along the easterly side of respondent’s right of

It appears from the evidence that, on the night of the accident the appellant had spent the evening with some friends south of Venice. About 11 o’clock P. M. he left for home, stopping for lunch at Venice. In company with a friend, he then pursued his course along the sidewalk easterly of respondent’s trolley way, to a point immediately opposite Clubhouse Avenue where he resided. Here they stopped to chat for a moment. As they stood talking, appellant saw a car apparently stationed on the side-track about ninety feet northerly from the place where they stood talking. The car had neither headlight nor sidelights exhibited, although there was a dim light shining inside the car. No motorman was seen. There was nothing in the appearance of the car to indicate that it was in motion or approaching. Knowing of the custom to side-track cars at this point, seeing no lights and hearing no sounds to indicate that the car was in motion, the appellant was deceived into believing that it was in fact parked there for the night. Just before stepping upon the side-track to cross to his own side of the trolley way, he again looked to the north seeing the car in the same position which he supposed it formerly occupied. He then looked down toward the rails and stepped upon the track in an effort to cross the right of way. Suddenly, as he reached a point within a foot of the farthest rail of the side-track, he heard the rumbling of the wheels of the approaching car. It carried no headlight, nor sidelights, the fender was elevated,

The appellant testified: “On the night of February 8th, . . . I was with some friends about eight blocks south of Venice. ... I left there about 11:15 (P. M.). ... I went up to Venice, and after getting something to eat, I started home on the sidewalk. ... I proceeded along this walk until I came to Clubhouse avenue. ... I am familiar with the place marked ‘waiting-room.’ I have been catching trains . . . for fifteen years at that station. . . . The trains stopped at that point. The waiting-room is opposite the alley marked on the map, and south of Clubhouse avenue (about a hundred feet) between the two main tracks. . . . The public crossed the south-bound track going to the waiting-room at Clubhouse avenue. That is the only way you can get to the station. The public also crossed from the east side of the main track going to the waiting-room. . . . For about ten years . . . the side-track has been used for parking electric trains—usually in the evening. I had observed cars there hundreds of times, for the night. They were parked on the side-track. ... I arrived near Clubhouse avenue on the cement sidewalk about five or ten minutes after twelve. The chap with me, and I were walking down the sidewalk toward Clubhouse avenue, and we stood there a minute, and I happened to see this car parked there. ... It was north of me. There was no headlight on it. There was a dim light inside. I couldn’t say whether it was a single ear or not. . . . There were no red lights nor green lights attached to it—no lights whatever. ... I couldn’t tell whether there was any man at the motor, or

Contributory negligence will bar one from recovering damages for personal injuries. (Civ. Code, sec. 1714.) But the question as to whether one has brought the injury upon himself by a lack of ordinary care, is usually not a question of law for the court, but is one of fact for the jury. It is the province of the jury to determine the question of contributory negligence whenever the facts present a problem upon the solution of which reasonable minds may differ. (1 Thompson on Negligence, p. 408, sec. 425; 29 Cyc. 631; Kelly v. Santa Barbara R. R. Co., 171 Cal. 423 [ 153 Pac. 903 ]; Hoffman v. Southern Pacific Co., 84 Cal. App. 337 [ 258 Pac. 397 ].) For the purpose of a nonsuit the evidence must be viewed most strongly against the defendant. Every reasonable inference and presumption which may be deduced from the evidence must be resolved in favor of the plaintiff. All of the evidence disclosed by the record must be accepted as true. Conflicts and contradictions in the evidence must be disregarded. A lack of credibility of witnesses may not be considered, and the plaintiff’s evidence is entitled to its full probative strength regardless of whether it may have been properly or improperly admitted. (9 Cal. Jur., p. 551, sec. 35.)

Since Trolley Way, at the point where the accident occurred, is unpaved, and occupied by double interurban tracks, consisting of ties which rest upon loose sand, and “T” rails projecting their full height above the level of the street, it must be conceded that the rule of caution required of a pedestrian attempting to cross tracks under such circumstances is the one applicable to steam railways, rather than the rule governing street-ear tracks within the boundaries of a city congested with traffic. (Riney v. Pacific Electric Ry. Co., 45 Cal. App. 145 [ 187 Pac. 50 ].) Clearly, this rule requires one to reasonably exercise his faculties of sight and hearing before attempting to cross an interurban electric system of tracks. One is bound to look and listen before crossing a railroad track, and if the view is obscured for any reason so as to impair his sight or hearing, the exercise of reasonable caution will require him to stop

Testing the conduct of appellant in the instant case by the foregoing rule, can it be said that he omitted any act for his safety which would be required of a reasonable person under like circumstances? His familiarity with the custom of the respondent railroad company to station cars for the night on this side-track would induce him to reasonably conclude that here was a car switched out and stationed until the increased traffic in the morning would require its use. His very knowledge of this custom beguiled him into the natural mistake of assuming that it was sidetracked for the night. This inference may reasonably be supported by the fact that it appeared to be stationary, and had neither headlight nor sidelights which were customarily used upon these electric cars when they were being operated. He saw no motorman in the car, despite the dim light which appeared within. He heard no sound to warn him of a moving car, although his hearing was good. He stopped; he looked and observed the car, and he listened. It was dark at this point, for there were no lights nearer than the farthest end of the station, and these consisted of merely a group of three or four small incandescent globes. After stopping and observing the car some ninety feet away, he chatted for a moment or more with his friend, and before venturing upon the side-track, he again looked and saw the car in the same position where he supposed he had formerly seen it. Everything in the appearance of the car confirmed his belief that it was stationary. As a reasonable person he had a right to assume that it would not be run down across an open way.leading to a residence street where the public were accustomed to cross the tracks, without a headlight and without adequate warning of whistle or bell. This is not a case of a pedestrian thoughtlessly stepping in front of a rapidly approaching ear on a main line, where one should expect trains to be running, and where a glaring headlight, or a warning whistle or bell admonished him of the danger.

It was a mistaken estimate regarding an unlighted and unheralded car silently sliding down upon him on a side

Under such circumstances, viewing the evidence most strongly against the respondent, with every reasonable inference and presumption in favor of the appellant; accepting the entire evidence as true; rejecting all conflicts and contradictions, if any exist, and giving full weight, credit and probative force to the testimony, we are bound to conclude that the record does not warrant the court in finding, as a matter of law, that appellant was guilty of contributory negligence.

As precedents in support of the judgment of nonsuit in the present case, respondent relies on the cases of Brown v. Pacific Electric Co., 167 Cal. 199 [ 138 Pac. 1005 ], Ross v. Pacific Electric Co., 39 Cal. App. 659 [ 179 Pac. 538 ], and Riney v. Pacific Electric Co., 45 Cal. App. 145 [ 187 Pac. 50 ]. These cases, however, were based upon facts radically different from those found in the case at bar, and are therefore of little aid. Reference to the essential facts of these cases will readily distinguish them from the instant case without comment. In the Brown case, supra, the syllabus concisely states the facts upon which a nonsuit was sustained, as follows: “The deceased, after approaching the car-track, and seeing the rapidly approaching car with its brilliant headlight, and after turning back to a place of safety, and hearing the warning whistle sounded by the motorman, suddenly, without looking, or taking any of the commonest precautions, rushed in front of the car.” In the Ross case, supra, a nonsuit was affirmed on the following facts: Plaintiff was well acquainted with the locality where the accident occurred. It was broad daylight. She alighted from a car adjacent to a parallel track upon which another car was approaching from the opposite direction. The court said: “She had alighted . . „ (in a) zone of safety,

Appellant complains of error in the sustaining of objections to testimony to the effect that the public commonly crossed respondent’s tracks, at the place where the accident occurred, in their course directly to Clubhouse Avenue on the westerly side of Trolley Way. “Q. Is it (the right of way across the tracks to Clubhouse avenue)

For the foregoing reasons the judgment is reversed.

Hart, J., and Finch, P. J., concurred.