Johnson v. Sacramento Northern Railway

In this action to recover damages for personal injuries sustained in a collision between plaintiff’s motorcycle and an electric freight train operated by the defendant company, judgment upon the verdict of the jury was entered in favor of plaintiff and against the defendant railroad company and the defendant Torbet, the motorman. Defendants made a motion for judgment notwithstanding the verdict and also a motion for a new trial which motions were denied. Defendants appeal from the judgment and also from the order denying their motion for judgment notwithstanding the verdict.

The accident occurred at about 2 o’clock on the afternoon of September 24, 1938, on Highway No. 40; at a point near Vacaville where the single track of the defendant railroad company crosses said highway approximately at a right angle. Plaintiff, a young man 19 years of age was traveling from San Francisco to Salt Lake City upon his motorcycle and was proceeding along said highway in an easterly direction at a rapid speed. The motorcycle was a 1930 model and the front brake thereon was disconnected. The train of the defendant company consisted of an electric locomotive and a box car and it was proceeding in a southerly direction at a slow speed across said highway in making the trip from Vacaville to Fairfield. Plaintiff threw on his rear brake and

Upon the trial, defendants made a motion for a nonsuit and a motion for a directed verdict. The trial court stated that there was a serious legal question as to whether the case should be permitted to go to the jury but the motions were denied. The trial court instructed the jury that plaintiff was chargeable with negligence as a matter of law but nevertheless submitted the ease to the jury upon the theory that the .last clear chance doctrine might be applied. The main question raised on this appeal is whether there was sufficient evidence to sustain the verdict and judgment or, stated in another way, whether there was any substantial evidence to warrant the giving of the instructions on the doctrine of last clear chance. Defendants contend that there was not and our review of the record and of the authorities cited by respective counsel leads us to the conclusion that defendants’ contention must be sustained.

Before examining the evidence in greater detail, it is appropriate to refer to the essential elements which must be present to warrant a recovery, under the last clear chance doctrine, by one who has himself been guilty of negligence. Said doctrine may be said to be an exception to the general rule and its application is limited to those cases in which all of said elements are present. In the frequently cited case of Palmer v. Tschudy, 191 Cal. 696 [ 218 Pac. 36 ], the court said at page 700, “The last clear chance rule presupposes: that the plaintiff has been negligent; that as a result thereof she is" in a situation of danger from which she cannot escape by the exercise of ordinary care; that the defendant is aware of her dangerous situation under such circumstances that he realizes, or ought to realize, her inability to escape therefrom; that he then has a clear chance to avoid injuring her by the exercise of ordinary care, and fails to do so. If all of these elements are present the rule applies and enables

The doctrine is most frequently applied in situations where a driver or pedestrian has placed himself, through his own negligence, in, or in very close proximity to, the path of an oncoming train or vehicle and is thereafter discovered in such position of danger by the operator of the oncoming train or vehicle in ample time for the latter to avoid the accident by the exercise of ordinary care. In such cases there is a distinct sequence of events which gives the party sought to be charged time for effective action to avoid the consequences of the injured party’s original negligence or in other words a last clear chance to avoid the accident after the discovery of the injured party’s peril. It is only in exceptional circumstances that the doctrine may be applied to cases involving collisions between two moving vehicles or at least in cases where the injured party is driving a rapidly moving vehicle for in such cases the act creating the peril ordinarily occurs practically simultaneously with the happening of the accident and the party sought to be charged can not be said to have had a last clear chance to avoid the accident after the discovery of the injured party’s peril. That the injured party may not ordinarily invoke such doctrine in cases involving collisions between moving vehicles and trains at railroad crossings is established by numerous decisions in this jurisdiction. (Young v. Southern Pacific Co., 189 Cal. 746 [ 210 Pac. 259 ] ; Read v. Pacific Electric Ry. Co., 185 Cal. 520 [ 197 Pac. 791 ] ; Wallis v. Southern Pacific Co., 184 Cal. 662 [ 195 Pac. 408 , 15 A. L. R. 117 ] ; Young v. Southern Pacific Co., 182 Cal. 369 [ 190 Pac. 36 ]; Basham v. Southern Pacific Co., 176 Cal. 320 [ 168 Pac. 359 ] ; Arnold V. San Francisco-Oakland Terminal Rys., 175 Cal. 1 [ 164

We had occasion to deal at length with the question of the applicability of the last clear chance doctrine in Poncino v. Reid-Murdock & Co., 136 Cal. App. 223 [ 28 P. (2d) 932 ], a case involving two moving automobiles at an intersection. In that case, we said at page 232, “While the doctrine of last clear chance has been applied in certain exceptional cases involving collisions between moving vehicles, we are of the opinion that it should not be applied to the ordinary case in which the act creating the peril occurs practically simultaneously with the happening of the accident and in which neither party can fairly be said to have had a last clear chance thereafter to avoid the consequences. To apply the doctrine to such eases would be equivalent to denying the existence of the general rule which makes contributory negligence a bar to recovery.” (See, also, Bagwill v. Pacific Electric Ry. Co., 90 Cal. App. 114 [ 265 Pac. 517 ] ; Giannini v. Southern Pacific Co., 98 Cal. App. 126 [ 276 Pac. 618 ]; Barnett v. Atchison etc. Ry. Co., 99 Cal. App. 310 [ 278 Pac. 443 ] ; Baecht v. Marsh Bros, etc., Inc., 118 Cal. App. 63 [ 4 P. (2d) 585 ]; Rasmussen v. Fresno Traction Co., 15 Cal. App. (2d) 356 [ 59 P. (2d) 617 ]; Erwin v. Morris, 10 Cal.. App. (2d) 168 [ 51 P. (2d) 149 ]; Lasch v. Edgar, 46 Cal. App. (2d) 726 [ 116 P. (2d) 949 ]; Behne v. Pacific Electric Ry. Co., 30 Cal. App. (2d) 437 [ 86 P. (2d) 843 ].)

In Hutcheson v. Misenheimer, 169 Va. 511 , 194 S. E. 665 , the court said at page 667, “The doctrine presupposes time for effective action. It is not applicable where the emergency is so sudden that there is no time in which to avoid the accident. Unless there is an appreciable difference in time between the earlier negligence of the plaintiff and the later negligence of the defendant and a last clear chance to avoid the accident afforded the defendant, which he fails to

And in St. Louis S. W. R. Co. v. Simpson, 286 U. S. 346 , [ 52 S. Ct. 520 , 76 L. Ed. 1152 ], the United States Supreme Court refused to apply the last clear chance doctrine where the evidence showed that the negligence of the deceased and of the conductor were “substantially concurrent.” The court there said at page 1155, “The transaction from start to finish must have been a matter of seconds only. . . . Calculations so nice are unavailing to prove anything except the unity of the whole transaction. The several acts of negligence were too closely welded together in time as well as in quality to be viewed as independent.”

It is also significant to note that the “situation of danger” or “position of danger,” referred to in the authorities, dealing with the last clear chance doctrine, is reached only when a plaintiff, moving toward the path of an oncoming train or vehicle, has reached a position “from which he cannot escape by the exercise of ordinary care. ’ ’ In other words, it is not enough, under the last clear chance doctrine, that plaintiff is merely approaching a position of danger, for until he has reached a position of danger, he has the same opportunity to avoid the accident by the exercise of ordinary care, as has the defendant. In such cases the ordinary rules of negligence and contributory negligence apply, rather than the exceptional doctrine of last clear chance. It is only in cases in which, after plaintiff reaches a position of danger, defendant has a last clear chance to avoid the accident by the exercise of ordinary care, and plaintiff has no similar chance, that the doctrine is applicable.

In Young v. Southern Pacific Co., 182 Cal. 369 [ 190 Pac. 36 ], a case involving a collision between a motorcycle and a slowly moving train, the court said at page 380, “The only evidence observable by the train employees was that the deceased was proceeding heedlessly forward. The last clear chance doctrine was not applicable until he arrived at such a point as to be in peril, and this was the point where he could no longer escape injury by exercising ordinary care. Until he reached that point the train employees had a right to rely upon his continuing obligation to observe the approach of the train. . . . Under the last clear chance doctrine the peril which calls upon the train employees to act must be an actual

In Arnold v. San Frcmcisco-Oaldand Terminal Rys., 175 Cal. 1 [ 164 P. 798 ], a case involving a collision between an automobile and a street car, the court said at page 6, “The doctrine of the last clear chance could not become applicable until Arnold’s negligence had brought him so close to the track that he could not by ordinary care either stop or turn aside so as to avoid a collision, or until his conduct showed that he intended to hazard a crossing ahead of the car, and when these conditions became apparent the utmost care by either party would have been unavailing to prevent the accident.” (See, also, Taylor v. Pacific Electric Ry. Co., 172 Cal. 638 [ 158 Pac. 119 ]; Green v. Los Angeles etc. Ry. Co., 143 Cal. 31 [ 76 Pac. 719 , 101 Am. St. Rep. 68 ] ; Thompson v. Los Angeles etc. Ry. Co., 165 Cal. 748 [ 134 Pac. 709 ]; Choquette v. Key System Transit Co., 118 Cal. App. 643 [ 5 P. (2d) 921 ].)

We now turn to a further consideration of the evidence in this case. The accident occurred on a clear, dry day on the broad main highway above mentioned. The highway at that point consists of the main concrete highway, twenty feet in width, with asphalt shoulders, each ten feet in width, at the sides thereof. The right of way for said highway is 100 feet in width, and dirt shoulders, which are practically level, are at either side of the asphalt shoulders. The highway is straight and practically level for a long distance in either direction. Near Vacaville, the single track line of the defendant company crosses said highway. There are numerous warning signs and signals in the vicinity of the crossing. A detailed description of these signs and signals need not be given, as plaintiff admittedly saw the signs, the track and the train when a long distance from the crossinig. Suffice

It is not claimed that the train was operated at a rapid speed at any place in the vicinity of the crossing. It admittedly traveled slowly, the highest estimate of its speed at any place in the vicinity of the crossing being ten miles per hour. Other estimates were all lower. On the other hand, plaintiff’s own estimate of his lowest speed before applying his brake was thirty-five to forty miles per hour. All other estimates of plaintiff’s speed were higher and indicated that plaintiff was traveling at fifty-five to sixty miles per hour when he applied his brake. Plaintiff conceded that he was merely estimating his speed, as his motorcycle was not equipped with a speedometer. He had passed an automobile, which was traveling in the same direction, about one or two miles before reaching the crossing. The driver of said automobile was Mr. Hecker, an employee of the Motor Vehicle Department. Mr. Heclcer testified that he himself was traveling at forty-eight or forty-nine miles per hour, as shown by his speedometer; that plaintiff was traveling in excess of fifty miles per hour upon passing; and that plaintiff thereafter pulled away so that plaintiff was about 1000 feet ahead of him at the time the accident occurred. One of the other disinterested witnesses, who was at the Davis Street intersection, estimated plaintiff’s speed at sixty miles per hour.

The evidence regarding the skid marks and gouge marks stands uncontradicted. Plaintiff testified that when he applied the brake, the rear wheel locked and skidded. He also testified that he laid his motorcycle on its side “because that makes a motorcycle stop quick; the wheels are not turning and the whole side of the motorcycle is against the ground digging in and it drags down faster. ...” When asked as to the most effective way to stop a motorcycle, plaintiff testified, “The most effective way is to throw it broadside and lay it on its side and let it dig in,” which method would stop it “quicker than any brakes could.” Testimony as to the length and nature of the marks was introduced through

There are other facts as to which there is no real conflict in the evidence. The point of impact with respect to the highway was near the center of the south asphalt shoulder or slightly south thereof. In other words, said point was at least fifteen feet south of the center of the concrete portion of the highway. Plaintiff interprets certain evidence as indicating that the point of impact may have been slightly further south and on the dirt shoulder rather than the asphalt shoulder, but we do not believe the evidence to which plaintiff refers, even if we assume that the point of impact may be inferred therefrom, strengthens plaintiff’s position. After the impact, the train stopped after traveling not more than approximately eight feet. As to the point of impact with respect to the train, we likewise find no real conflict in the evidence. Defendants claim that the impact was on the side of the locomotive and to the rear of the front truck of the locomotive. Plaintiff claims in his briefs that there was evidence from which the jury could have inferred “that the point of contact was in front of, or right at, the front truck of Motor 601.” We find no evidence from which the jury could have inferred that the contact was at a point in front of the front truck or that plaintiff’s arm may have been run over by the front truck rather than the rear truck, as suggested in plaintiff’s briefs. The testimony of every

Plaintiff was questioned with respect to his ability to stop his motorcycle under the circumstances existing at the scene of the accident and he testified that going at a speed of thirty-five or forty miles per hour, he could have stopped the motorcycle, using only the rear brake, in around 140 feet or a little less.

Several witnesses, including disinterested witnesses, were at or near the scene at the time and testified as to the relative movements of the train and motorcycle shortly before the accident happened. The testimony of all of said witnesses, with the exception of plaintiff, was in substantial accord.

The testimony of said witnesses shows that the train had proceeded slowly down the track from its starting point in Vacaville, which was only a short distance away; that the train had slowed down almost to a stop as it approached the highway for the purpose of making a check of the operation of the signals and of the traffic on the highway; that one or more automobiles proceeding westerly had stopped in response to the signals and had then proceeded westerly across the tracks ahead of the approaching train; that the motorman saw plaintiff approaching from the west when plaintiff was beyond the overhanging sign at Davis Street and some 500 to 700 feet away from the track; that the motorman then glanced at an automobile which had been proceeding westerly and had stopped east of" the tracks in response to the signal; that the motorman then slightly accelerated the speed of the train to cross the highway, which speed was never more than eight to ten miles per hour at the highest estimate; that after starting across the highway, the motorman again saw plaintiff, who was then 250 to 300

Plaintiff’s testimony differed from that of all other witnesses in certain particulars. He testified that he saw the train when he was near the overhanging sign and that the train was at a complete stop; that he approached the track at from thirty-five to forty miles per hour; that said complete stop had been made by the train, with the front of the locomotive about seven feet north of the northerly asphalt shoulder; that he was within 100 feet of the track when the train started up from said complete stop and that he thereafter threw on his brakes, locked his wheel, laid the motorcycle on its side and slid under the locomotive, as above described. It is upon this evidence that plaintiff relies, and he claims that said evidence was sufficient to support the verdict and judgment.

The inherent improbability of said testimony of plaintiff is at once apparent. Said testimony, insofar as it related to the speed of the motorcycle and the place where the brakes of the motorcycle was applied, was at variance with other evidence which was undisputed, including that concerning the skid and gouge marks made by the motorcycle when the brake was applied. (Warwick v. Maneely, 40 Cal. App. (2d) 235 [ 104 P. (2d) 831 ].) Said undisputed evidence showed that while plaintiff could have stopped his motorcycle under the circumstances within 140 feet by the application of the brake alone, if he had been traveling between thirty-five and forty miles per hour, he was traveling at such speed that he could not stop said motorcycle within 175 to 180 feet by the application of the brake and the further use of the more effective method of laying the motorcycle on its side and letting it “dig in.” But even disregarding for the moment

But as we read plaintiff’s briefs, he would apparently have us accept only portions of his testimony and only portions of the testimony offered by defendants, and then, by a process of elaborate calculation, applied to the' selected portions of the testimony, determine that there was some evidence from which the jury could have reasonably concluded that the defendant motorman had a last clear chance to avoid the accident. We have endeavored to follow the calculations made upon the testimony so selected, but are unable, under any view of the evidence, to find any substantial evidence which would support a verdict and judgment based upon the last clear chance doctrine.

It must be remembered that the last clear chance doctrine involves just what its name implies. As this court said in Poncino v. Reid-Murdock & Co., 136 Cal. App. 223 [ 28 P. (2d) 932 ], at page 227, “In other words, it is not enough to relieve a plaintiff of his own negligence that the defendant may have had a chance to avoid the accident, but the defendant must have had the last chance and also had a clear chance to do so by the exercise of ordinary care. That he should have had the last chance, implies that his chance to avoid the accident must have come later in point of time than any similar chance on the part of the injured person. That he should have had a clewr chance implies that he must have had more than a bare possible chance to avoid an unexpected peril created practically simultaneously with the happening of the accident by the negligence of the injured party.” (See, also, Behne v. Pacific Electric Ry. Co., 30 Cal. App. (2d) 437 [ 86 P. (2d) 843 ] ; Bogardus v. Snyder, 17 Cal. App. (2d) 411 [ 62 P. (2d) 153 ]; Read v. Pacific Electric Co., 185 Cal. 520 [ 197 Pac. 791 ].)

The comments last made sufficiently distinguish the authorities upon which plaintiff relies. Chappell v. San Diego etc. Ry. Co., 201 Cal. 560 [ 258 Pac. 73 ], involved an automobile stalled on the track. Starck v. Pacific Electric Ry. Co., 172 Cal. 277 [ 156 Pac. 51 , L. R. A. 1916E, 58], involved a pedestrian standing between double tracks with her path blocked by a standing car. Harrington v. Los Angeles Ry. Co., 140 Cal. 514 [ 74 Pac. 15 , 98 Am. St. Rep. 85 , 63 L. R.

Here the negligence of plaintiff and the negligence, if any, of the motorman were, in the words of the United States Supreme Court “substantially concurrent” and calculations such as those made by plaintiff are “unavailing to prove anything except the unity of the whole transaction. The several acts of negligence were too closely welded together in time as well as in quality to be viewed as independent.” (St. Louis S. W. Ry. Co. v. Simpson, 286 U. S. 346 [ 52 S. Ct. 520 , 76 L. Ed. 1152 ].) And as was said in Bagwill v. Pacific Electric Ry. Co., 90 Cal. App. 114 [ 265 Pac. 517 ], at page 121, “Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. ... We are not to tear down the facts of a case and rebuild the same so that, by a trimming down and tight-fitting operation, something can be constructed upon which may be fastened the claim of last clear chance. The words mean exactly as they indicate, namely last clear chance, not possible chance.” There is no escape from the conclusion that the .record before us presents a case where the “negligence of the injured party was contemporaneous, concurrent, continuing and contributory” with the negligence, if any, of the motorman and such a case

We therefore conclude that the case is governed by the general rules of negligence and contributory negligence, rather than by the last clear chance doctrine, as shown by authorities above cited dealing with ordinary collisions between moving vehicles and trains at railroad crossings. It follows that the evidence was insufficient to sustain the verdict and judgment and that defendants’ motion for judgment notwithstanding the verdict should have been granted. In view of these conclusions, it becomes unnecessary to consider the other points raised in defendants’ briefs.

The judgment and the order denying defendants’ motion for judgment notwithstanding the verdict are reversed and the trial court is directed to enter its order granting said motion.

Nourse, P. J., and Sturtevant, J., concurred.

A petition for a rehearing was denied October 28, 1942, and respondent’s petition for a hearing by the Supreme Court was denied November 27, 1942. Carter, J., voted for a hearing.