Deshotel v. Atchison, Topeka & Santa Fe Railway Co.

The jury rendered a verdict in favor of plaintiff against all defendants for $365,000.^[1] On defendants’ motion for new trial, the trial court, as a condition for denial thereof, reduced the amount to $290,000. Plaintiff accepted this re

Questions Presented

1. Santa Pe appeal: (a) Admission of photographs of other crossings, (b) Admission of number of accidents at these other crossings, (e) Excessive damages.

2. Yellow Cab appeal: Was the negligence of the Santa Pe the sole proximate cause of the accident?

1. Santa Fe Appeal, (a) Photographs.

While the Santa Pe contended at the trial that the negligence of the cab driver was the sole proximate cause of the accident, it concedes that the evidence supports the verdict as to liability. It contends', however, the case on this issue was very close and hence any error would have been prejudicial.

On the rainy morning of January 11, 1952, a Santa Fe train, driven by William Floyd, was proceeding northwesterly through the Berkeley residential area toward an eastern destination. The Santa Pe right of way, in this vicinity, runs northwesterly and southeasterly, crossing east-west streets at an angle a little less than perpendicular. At the intersection of Parker Street, which runs east and west, and Acton Street, which runs north and south, the Santa Pe right of way crosses the intersection slightly to the east of its center, and at an acute angle to Acton Street. As the train approached the Parker-Acton intersection, the Yellow Cab, of which Archie Hughes was the driver, and plaintiff Deshotel was the passenger, was going east on Parker Street, approaching the intersection. At about 9 :30 a. m. the cab and the train collided at the intersection, resulting in serious injuries to Deshotel. There was evidence that the train did not ring a bell or sound a whistle as it approached the crossing, and that it was proceeding at a speed in excess of the maximum speed permitted by the Santa Pe rules.^[3] The crossing was protected by an advance warning sign, by cross-arms and by a white sign painted on the pavement, but no wigwag. Defendant Yellow Cab, in an attempt to show that Santa Pe did not use ordinary care to protect the Parker Street crossing and maintained a trap there, introduced in evidence (over Santa Pe’s objection) photographs of eight crossings adjacent to Parker

Defendants contend that the admission of the photographs of the other crossings was error because there was no showing of similarity with the Parker Street crossing, particularly as to visibility of the railroad from the intersecting streets. The accident occurred at the crossing in the intersection of Acton Street and Parker. The other eight crossings were not at street intersections but in the middle of the block. Prom the aerial photographs of the area (including the eight other crossings) admitted without objection, this appears to be the main difference from the Parker Street crossing. The Berkeley Director of Planning who was the only one who testified on the subject testified that the neighborhood of the nine crossings was of the same general character, that is, about the same size houses, kind of landscape treatment, character of streets, trees, etc., but that the crossings were different as to closeness of the houses to the tracks. He could not say concerning the blocking or not blocking of view or visibility at the various crossings. He did say that “in terms of sight distance” the crossing areas were different. Counsel stipulated that the trial judge could go to the scene and make a preliminary determination as to the similarity of the crossings. This the trial judge did and reported that the crossings were “essentially similar.” As said in Jensen v. Southern Pac. Co., 129 Cal.App.2d 67 , 74 [ 276 P.2d 703 ]: “Identical conditions will rarely be found. Substantial similarity is normally sufficient. Determination of relevancy, including similarity of conditions in such a ease, is primarily the function of the trial judge.” Defendants have pointed out no difference in visibility between the crossings other than the fact that at the Parker Street crossing Acton Street had to be crossed by the taxi to meet the right of way, whereas the other crossings involved only one street and the right of way. Looking at all nine photographs and the aerial photograph, the visibility at all crossings seems to be substantially the same. Moreover, the court instructed the jury that it would have to find the crossings substantially similar before it could consider the fact of wigwags at the other crossings and not at Parker Street as a factor in determining whether the Santa Pe maintained the degree of care required of it. This

Santa Pe contends that it was forced to ask Gibson concerning the number of accidents at Parker Street, because prior thereto Yellow Cab had asked him if there had not been five accidents there. The court had then overruled Santa Pe’s objection to the question. However, the witness stated that he did not make the surveys and the question was not answered. Thus, when Santa Pe took the witness on redirect there was no evidence before the jury of any accidents at the crossing and the Santa Pe was not forced to interrogate him on the subject. Moreover, to bring out information on the subject the Santa Pe required Gibson to testify from the commission reports.

(c) Excessive Damages.^[5]

Santa Pe refers to plaintiff’s injuries as “tragic.” There was no dispute as to his injuries or their serious effect. Without detailing them it is sufficient to state that he will never be able to earn money or to take care of himself. He will continue to have to have assistance to be turned in bed, and to be placed on a toilet seat or in a wheel chair. He will be unable to use the left side of his body or either leg. He will continue to be incontinent of urine. He has a large skull defect. He will require medical attention from time to time and a nurse daily. The jury verdict was for $365,000, which the trial judge reduced to $290,000. The parties assume that this figure is comprised of the following amounts: Medical expenses to time of trial, $20,020.69; lost wages (he was making $400 per month as a barber at the time of injury), $12,800; total, $32,820.69. Plaintiff’s life expectancy is 32.77 years. $300 per month was allowed for his future care, allowing for only one nurse at eight hours per day. The present cash value of $300 per month for his life