Docherty v. Key System

Action by plaintiff for the death of her husband in a collision at Ashby Avenue and Adeline Street in Berkeley between an automobile driven by the deceased and a train of the defendant. The jury brought in a verdict for plaintiff, but the court entered a judgment in favor of defendants notwithstanding the verdict, upon the grounds that “. . . the decedent, was, at the time of and prior to the happening of the collision in question, guilty of contributory negligence as a matter of law [and] . . . That the motion for a directed verdict heretofore made by the Defendants herein should have been granted by the Court. ’ ’ In addition to the denial of the motion for directed verdict, the court also denied a motion for nonsuit.

Before considering the evidence, it may be well to consider the rule of law applicable to this appeal.

“The right of the trial court to set aside a verdict and enter a contrary judgment is absolutely the same as its right to grant a nonsuit. [Citing cases.] The court should, therefore, grant such a motion when, and only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. [Citing cases.]” (Card v. Boms, 210 Cal. 200 , 202 [ 291 P. 190 ].)

As said in Shannon v. Thomas, 57 Cal.App.2d 187 , at page 193 [ 134 P.2d 522 ] :“... it is only when reasonable minds can draw but one inference, and that inference points inevitably to the negligence of plaintiff, contributing directly or proximately to his injuries, that the law will step in and forbid a recovery under the verdict. Preservation of the inviolable right of a litigant to a trial by jury is guaranteed by both the federal and state Constitutions, which accounts for the rule that it is only when it can be said as a matter of law that no reasonable conclusion is legally deducible from the evidence other than would sustain a verdict for the defendant, and that

“Upon this appeal, therefore, there is but one question to be determined by us and that is whether the appellants or either of them were as a matter of law guilty of contributory negligence which proximately contributed to their injuries. If this question requires an affirmative answer, then recovery is barred.”

In view of the above rule, only the facts most favorable to plaintiff will be set out. Contradictory evidence will be omitted.

The accident occurred on a Saturday evening at approximately 8 o’clock. At the scene of the accident, Adeline Street runs approximately north and south, and is approximately 147 feet, 7 inches wide. There are two sets of tracks on Adeline Street, only the more easterly of which is used by the Key System; although some distance on either side of the intersection in question, the Key System operates on double tracks. For five or six blocks north of the intersection in question and for three or four blocks south, the tracks used by the Key System are on a private right-of-way with the ties exposed, although at the point where Ashby crosses Adeline, the right-of-way is paved. There is a jog in Ashby at Adeline, the point where Ashby enters from the east being some distance north of the point of entry from the west. From the north curb of Ashby where it enters on the east side of Adeline to Emerson Street, which enters Adeline also on the east side, just south of the point where Ashby enters Adeline from the west, the distance is over 300 feet. At the point where Ashby enters Adeline from the east side, it is divided in the center by a double white line with two traffic lanes on each side thereof, and Ashby is similarly lined with the same number of traffic lanes where it enters Adeline Street from the west. There are stop signs stopping all traffic entering the intersection from either street.

John Mitts is the only eyewitness produced by plaintiff. He testified that he was in the antique business in a store on Adeline Street which he located on a map or plat (plaintiff’s Exhibit 1). His car was parked in front of or to the north of his store. He placed the car on the map at a point on the east side of Adeline Street and about 40 feet from the point

A reasonable inference from Mitts’ testimony as a whole is that Doeherty was approaching the crossing second in a line of cars; that the train was far enough away to have enabled him to cross the tracks in safety; that the truck ran through the stop sign, blocked the path of the car ahead of him, causing Doeherty to either stop on the tracks or to almost stop, long enough for the oncoming train, which in spite of the fact that it was approaching a heavily traveled intersection and a line of cars approaching and crossing it, kept increasing its speed, and without giving any warning until it was 50 to 75 feet from the crossing, collided with Docherty’s car; that Doeherty would have safely crossed had it not been for the action of the truck in violating the law in not stopping at the stop sign and thereby creating an unexpected hazard, which together with the negligence of the operator of the train caused the accident.

It is true that Mitts’ testimony is somewhat contradictory and that the inference above stated is not the only one which can be drawn from his testimony. Moreover, it is a possible and reasonable inference from Mitts’ testimony (and this inference is supported by the evidence introduced by defendants) that the accident was solely due to the fault of Docherty, or that Doeherty at least was guilty of contributory negligence. But taking Mitts’ testimony and the legitimate inferences therefrom, as we must, there was evidence of sufficient substantiality to require that the jury pass upon the case.

In drawing the inference that the truck ran through the stop sign, we are disregarding the conclusion of the witness Mitts in that regard, as it was objected to and was clearly not admissible. However, the fact that a truck of the size testified to by Mitts was going 20 miles an hour at a point not over 25 feet from the stop line raises a legitimate inference that it

Also, a reasonable inference can be drawn that the deceased as he approached the crossing would have seen the truck considerably to the south of the stop line, would have assumed that it would stop as required by law; and then seeing the train a safe distance away, was justified in proceeding to follow the car ahead of him, keeping his eyes on the train to his left, as the point from which danger might be expected, and then due to the failure of the truck to obey the law, deceased found himself delayed just long enough to be unable to get out of the way of the approaching train. There was not room enough between the truck and the tracks for Docherty to have cleared the tracks.

It is agreed by both parties that under the situation as it existed at the point of the accident, the rules relative to railroad intersections should apply rather than the rules applying to streetcar tracks. (Lund v. Pacific Electric Ry. Co., 25 Cal.2d 287 [ 153 P.2d 705 ]; Dolton v. Green, 72 Cal.App.2d 427 [ 164 P.2d 795 ].) Thus, Docherty, upon observing the presence of the open tracks in the private right of way, was under a special duty of care. (Heintz v. Southern Pacific Co., 63 Cal.App.2d 699 [ 147 P.2d 621 ].) The motorman of the train was entitled to assume that any person approaching the track would use due care for his own protection. While the motorman ordinarily would be under no duty to stop, slow down or otherwise change the operation of his train in approaching the crossing, still, in view of the line of traffic crossing the tracks, the oncoming truck blocking the line of traffic and the peculiar circumstances here, it was for the jury to determine whether or not it was negligence for the train to approach the crossing at an ever-increasing speed reaching 30 miles an hour, without giving any warning until 50 to 75 feet away.

While, as pointed out by respondents, there is no direct evidence in the record that deceased stopped before approaching the tracks, that fact is not controlling. The evidence showed that deceased was familiar with the crossing. Without resorting to the due care presumption, the jury had the right to infer from all the circumstances of the case that had deceased looked as he approached the crossing he would have seen the train far enough away to permit him to continue on and clear the tracks in ample time, had not the sudden emergency created by the truck blocked his passage.

Under the testimony of Mitts, there was no time when it could be said as a matter of law that Docherty was guilty of contributory negligence. It is not clear from the testimony whether Mitts first saw Docherty’s car in the line of cars approaching the tracks before it arrived at the westerly set of tracks (M-2). But at that point a reasonable inference may be drawn that the train was far enough away so that Docherty was in no peril from its approach, had the truck stopped at the stop sign. Again when Mitts next saw Docherty (at M-4) on the easterly tracks (the ones upon which the train was approaching), it is a reasonable inference that he would have been able to have cleared the tracks except for the action of the truck. This case really resolves itself into the one question, as a matter of law, was Docherty negligent in assuming that the truck would stop at the stop sign, and in not watching it? To ask the question is to answer it. He had a right to assume that the driver of the truck would obey the law.

The truck was a hazard to Docherty; not because of its proximity, but because it failed to stop as required by law. The rule is well stated in Dickinson v. Pacific Greyhound Lines, 55 Cal.App.2d 824 , at page 827 [ 131 P.2d 401 ]: “In other words, defendant’s bus was a hazard to plaintiff’s car not because of the proximity of the bus but because of its unlawful speed. At its distance danger could be anticipated from it only by anticipating that its driver would violate the law. The general rule is that every person has a right to presume that every other person will perform his duty and obey the

In Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833 [ 161 P.2d 673 , 164 A.L.R. 1 ], the plaintiff left the curb when the traffic signal turned in her favor. She was hit by a streetcar which disregarded the traffic signal. The court said (p. 838) : “Whether or not she should have observed that the street car had started forward at that time, and if it had, whether she was aware of the danger, were for the jury to decide.” (Emphasis added.) In Nelson v. Southern Pacific Co., 8 Cal.2d 648 [ 67 P.2d 682 ], the plaintiff was driving her automobile over an oblique crossing of five sets of railroad tracks. She claimed she looked to the right and saw no train. She did not look in that direction again. She then looked to the left and saw a freight train on the first track for which she waited. She then started across the tracks and saw a locomotive to her left on track two. Keeping her eye on this locomotive she continued on and was struck on track four by a train coming from her right. The court said (p. 651) : “. . . her conduct in failing to look again to her right, in the presence of what she considered to be a definite hazard on her left” was a question for the jury.

Cases like Rasmussen v. Fresno Traction Co., 15 Cal.App. 2d 356 [ 59 P.2d 617 ], are distinguishable from this case, in that here the evidence sustains the conclusion that when deceased was first upon the tracks he had ample time to clear them, had it not been for an unexpected violation of the law by the truck. In the Rasmussen case and those mentioned in it, the situations were ones where the plaintiffs took a chance on beating the oncoming trains across the crossing. The stop, look and listen rule does not require the driver of a vehicle to wait for a train to pass unless it is in such proximity to the crossing as to constitute an apparent hazard.

One of the difficulties in this case is one inherent in all trials of this kind. An effort is made to pin a witness down to estimates of time, speed and distance, and then attempt to

The testimony of Mitts, unaided by the presumption of due care, raises an inference of due care on the part of the deceased. Therefore, we have not considered appellant’s contention that the presumption of due care applies, nor respondents’ contention that it does not apply because contradicted by appellant’s own evidence. Also, it is unnecessary to consider appellant’s contention that the doctrine of last clear chance applies. It should be noted that these questions were not raised at the trial nor were any instructions offered thereon.

In this opinion we are not holding that the inference that Docherty was free from neglect is the only reasonable, nor necessarily the most reasonable one, to be drawn from the evidence, nor that a motion for new trial would, not be justified. We are merely holding that “disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence” we cannot say “there is no evidence of sufficient substantiality to sup

As said in Anthony v. Hobbie, 25 Cal.2d 814 , at page 818 [ 155 P.2d 826 ] : “But cases in which it can be said that the negligence of plaintiff contributes proximately to the accident as a matter of law are rare. The rule has been stated in various ways in a legion of eases, that contributory negligence is not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences that may be drawn, one for and one against, the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion. [Citing eases.] ”

The judgment entered notwithstanding the verdict is reversed and the trial court directed to enter judgment in accordance with the verdict of the jury.

Peters, P. J., and Ward, J., concurred.

A petition for a rehearing was denied August 20, 1947, and the opinion was modified to read as above.

Respondents’ petition for a hearing by the Supreme Court was denied September 18, 1947. Edmonds, J., and Tray-nor, J., voted for a hearing.