Opinion
Rehearing Denied Jan. 28, 1931
Hearing Granted by Supreme Court Feb. 19, 1931.
Appeal from Superior Court, Fresno County; Charles R. Barnard, Judge.
Action by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company and others, in which defendant Bruce filed a cross-complaint. Judgment for plaintiff, and defendants appeal.
Reversed.
Superseding former opinion, 291 P. 215.
COUNSEL
Conley, Conley & Conley, of Fresno, for appellant William H. Bruce.
Everts, Ewing, Wild & Everts, and Dan F. Conway, all of Fresno, for appellants Fresno Traction Co. and W.E. Gash.
George R. Lovejoy and Ray W. Hays, both of Fresno, for respondent.
OPINION
CAMPBELL, Justice pro tem.
This is an action brought by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company and its motorman, W.E. Gash, and also against William H. Bruce, the driver of the automobile in which Genevieve Brennan, deceased, and her minor son were riding at the time of the collision which occurred at a railroad crossing on September 20, 1928. The case was tried before a jury, and resulted in a verdict against all of the defendants for $20,001; also a verdict in favor of the Fresno Traction Company and W.E. Gash as against the cross-complainant on the cross-complaint of William H. Bruce. All of the defendants have appealed.
The Fresno Traction Company operates its electric trolley line on regular schedule between the city of Fresno and the town of Pinedale, which is situated some 9 miles north of Fresno, and has been operating such line for a number of years. The line runs approximately north and south between Fresno and Pinedale, and is a single track line where it crosses Shaw avenue, which is a paved highway and runs approximately east and west. The paved portion of the highway is 24 feet in width, and crosses the tracks of the Fresno Traction Company at a right angle. This intersection is about 5 miles from the city of Fresno in a level and sparsely settled country.
The deceased, Genevieve Brennan, a woman of thirty-five years of age at the time of the accident, was employed by defendant William H. Bruce, a man of thirty-seven years of age, to do general housework on a ranch upon which he was living and was leasing, which is located about 11 miles north of Madera. Some two weeks prior to the accident Bruce had taken Mrs. Brennan and her small boy to visit her mother, and on the date of the accident had gone for them and was returning them to his ranch. Bruce drove his automobile in a westerly direction along Shaw avenue. The trolley car involved in the collision approached Shaw avenue from Bruce’s right, and was traveling in a southerly direction towards Fresno. For 637 feet along Shaw avenue before reaching the car tracks, and on Bruce’s right as he approached the crossing and in the direction from which the electric car was approaching, there was nothing to obscure Bruce’s nor Mrs. Brennan’s vision of the electric car; the ground was level, no foliage, house, or other obstructions of any kind were in the open country on their right as they proceeded towards the rails of the Fresno Traction Company; 307 feet from the tracks facing east and in the direction from which Bruce and the deceased approached the tracks was a standard California State Automobile Association railroad sign. The property lines extend 18 feet both north and south of the paved portion of Shaw avenue; 12 feet 6 inches from the rail, and facing the direction from which the automobile was approaching, and 13 feet north of the paved portion of the highway, stood a standard railroad crossing sign. The automobile in which Bruce, Mrs. Brenan, and the child were riding was an open Ford. Mrs. Brennan sat next to Bruce in the front seat, and the boy was sitting at the right of his mother. From defendant Bruce’s testimony, it appears that he and Mrs. Brennan were discussing what he had done while she had been away and a dance he attended. As they approached the tracks, and at a distance of about 60 or 80 feet therefrom, they both looked to the right and then he looked to the left. He further testified that he saw nothing; that Mrs. Brennan said nothing until just before the crash, when she said: "Lord! There is a car"; that he did not slow the speed of his automobile at any time during his approach to or while he was upon the tracks.
As to the motorman giving a warning signal, there is some conflict. Both the motorman and Robert Morris Hogan— the only passenger on the electric car at the time of the accident— testified that the motorman sounded a warning gong, the motorman stating: "Somewhere within about sixty feet of the edge of the paved portion of the highway, and I rang my gong *** and he didn’t check his speed any, and they were looking right at me, and I thought he was going on through, or he might have been aiming to stop; I can’t say but he didn’t check his speed *** I went over and got a little air. Taken just enough air through my air valve to pull the car down so it would give him plenty of time for clearance on through. *** Well, he didn’t check his speed. I got up within— something about ten or twelve feet of the edge of the paved portion of the highway and he was anywhere from about seven to nine feet east of the street car rail and all of a sudden he slammed on his brakes and swayed just a little to the left, and I had taken all the air I had, then at that time, and I realized there was going to be an accident." The passenger, Hogan, stated that the motorman rang his gong "ten or fifteen feet before we hit the crossing. I couldn’t say just exactly how far." Defendant Bruce testified that he heard no such gong sounded, and Floyd Lawden, a youth of thirteen years of age, who was walking along Shaw avenue and when about 100 feet west of the car tracks his attention was attracted by the crash of the collision, testified that he did not hear a gong or bell ring. When the motorman first observed the automobile, the electric car was traveling at 18 or 19 miles an hour, and when it approached the crossing it had been slowed down to 17 miles per hour. The speed of the automobile, according to defendant Bruce, was from 18 to 22 miles an hour. The automobile was struck about the center of the highway, shoved along and across the same and up to a telephone pole which stood 18 feet south of the southerly edge of the paved portion of the highway and a few feet west of the electric car tracks. Mrs. Brennan and her son sustained injuries from which they both died the next day.
The facts clearly show the driver of the automobile to be guilty of contributory negligence as a matter of law in driving his automobile upon a railroad track, which is itself a sign of danger, without first looking and listening. Giannini v. Southern Pacific Co., 98 Cal.App. 126, 276 P. 618, and cases collated. Shaw avenue is outside the limits of any incorporated city, and, there being no ordinance compelling the motorman to stop at the intersection, the action is governed by different rules of law than those which arise within the corporate limits of a municipality, coming under the same rules of law applicable to steam railways. New York Lubricating Oil Co. v. United Railroads, 191 Cal. 96, 215 P. 72; Billig v. Southern Pacific Co., 192 Cal. 357, 362, 219 P. 992, 995. The evidence discloses that the motorman observed the automobile proceeding at an ordinary rate of speed, and therefore had a right to rely upon the presumption that the driver would perform his duty and stop at the intersection. And this is especially true where, as here, the driver was looking directly at the electric car. His view was clear and unobstructed, and the fact that he testified that he did not see the car nor hear the warning gong is immaterial, as "the law presumes that a person possessing normal faculties of sight and hearing must have seen and heard that which was within the range of his sight and hearing." Young v. Southern Pacific Co., 189 Cal. 746, 754, 210 P. 259, 262. Furthermore, a person approaching a railroad track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen, and a traveler may not depend upon a custom or even a duty enjoined by law to give appropriate signals of the approach of trains, and has no right, because he heard no such signals, not to look and listen. Griffin v. San Pedro, L.A. & S.L.R.R. Co., 170 Cal. 776, 151 P. 282, L.R.A.1916A, 842. Vaca v. Southern Pacific Co., 91 Cal.App. 470, 475, 267 P. 346. The motorman had the right to presume that the driver of the automobile would stop or turn aside until his conduct was such as should reasonably have led him to apprehend the contrary. So long as it appeared that the driver, "with reasonable care, could stop his automobile, or turn it to one side or the other, so as to avoid a collision, and there were no obvious indications that he might not do so, the motorman had the right to assume that he would do so and upon that assumption to proceed along the track." Arnold v. San Francisco-Oakland Railway Co., 175 Cal. 1, 164 P. 798, 800. "The operator of such train or car was not bound to check the otherwise rightful speed of his train or car in approaching and passing such crossing until at least he has reason to believe that such person so approaching such crossing is not performing, or is not likely to perform, his duty in the foregoing regard." Billig v. Southern Pacific Co., supra.
In the present case the testimony shows that the motorman was not aware of any danger until his car was approximately 10 or 12 feet from Shaw avenue. Up to that time he believed— as under the law he had a right to believe— that the driver of the automobile would obey the law and either stop his automobile or speed up and go by, and this especially in view of the fact that, when he first looked, the occupants of the automobile were looking at him. In fact, the testimony of Bruce was that when he was 80 feet back from the track both he and the deceased looked in the direction of the oncoming car, and the testimony further establishes the fact that Bruce could easily have stopped his automobile before reaching the intersection. From a point 10 or 12 feet from Shaw avenue, where the motorman first became cognizant that a collision would occur or first realized there was imminent danger, he did everything within his power to stop the car; he gave it all the air he had, and did his utmost to prevent the accident.
Respondent urges that the question of the contributory negligence of the deceased is one of fact for the jury, and cites Parker v. Southern Pacific Co., 204 Cal. 609, 615, 269 P. 622, 624, wherein it is said: "It is impossible to lay down a general rule as a test of a passenger’s responsibility under such circumstances. At times it might be highly improper to suggest any course of action on the part of the driver. At other times the circumstances might be such as to charge the passenger with some duty to suggest caution or otherwise endeavor to protect himself. See Parmenter v. McDougall, 172 Cal. 306, 156 P. 460; Stewart v. San Joaquin L. & P. Corp., 44 Cal.App. 202, 186 P. 160. Each case must rest upon its own set of facts, and the determination of those facts, as a general rule, is one for the jury."
We concede that the question of a passenger’s contributory negligence is ordinarily a question for the jury, and, further, that the contributory negligence of the driver cannot be imputed to a passenger. Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 P. 385; Irwin v. Golden State Auto Tour Corp., 178 Cal. 10, 171 P. 1059; Nichols v. Pacific Electric Ry. Co., 178 Cal. 630, 174 P. 319; Marchetti v. Southern Pacific Co., 204 Cal. 679, 269 P. 529, 531. We do not, however, agree with respondent that the facts in Marchetti v. Southern Pacific Co., supra, upon which he principally relies, are analogous to those in the present case. In that case the facts, and we think the law applicable here, are stated in the following quotation: "Respondents contend that under the authority of Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 134 P. 709, and Parmenter v. McDougall, 172 Cal. 306, 156 P. 460, that a passenger in a vehicle operated by another is bound to exercise ordinary care for his own safety, and that, if such passenger is aware that the operator is carelessly rushing into danger, it may be incumbent upon him to take steps for his safety. These cases undoubtedly contain a correct statement of the law upon the subject of a passenger’s duty in case of known danger. They have little or no application to the present case, for the reason that it does not appear that there was anything that could have been done by the deceased which would have averted the collision. Had he looked in the direction the train was approaching, he could not, owing to the obstructions between him and the railroad right of way, have seen it until it had almost reached the street upon which he was traveling. Furthermore had he seen it in time to have warned the driver, there is no assurance that the latter could have brought his machine to a stop before reaching the railroad track."
In the present case the deceased’s view of the approaching car was unobstructed; the ground was level; no foliage, house, or obstruction of any kind were in the open country as the driver and passenger proceeded toward the crossing. The passenger at a distance of from 60 to 80 feet from the crossing— according to the testimony of all of the witnesses— looked directly at the car, and, as it was within the range of her vision, she saw it. Young v. Southern Pacific Co., supra. There was but slight variation between the rate of speed of the electric car and the automobile when the automobile was from 60 to 80 feet from the crossing. The driver maintained his same rate of speed, and evidently through mental abstraction— his mind being on a dance he was telling the deceased about which he had attended while she was away— failed to observe the close proximity of the electric car and to realize that he was driving into danger, and drove his automobile directly into the path of the on-coming car. Had the deceased called the attention of the driver to the electric car, at the rate of speed he was driving he could easily have stopped the automobile and averted the collision.
While it is true that the deceased is presumed to have done what a reasonable and prudent person could or would have done for his or her own safety, such presumption is disputable, and the undisputed evidence here refutes such presumption. While the question of the contributory negligence of the passenger, as a rule, is one for the jury (Parker v. Southern Pacific Co., supra), we think the facts as disclosed by the record are such that reasonable persons could draw but one conclusion, and therefore the question of contributory negligence in the present case is one of law. When one finds himself in a position of peril and makes no attempt whatever to extricate himself from such position, such lack of action on his part constitutes want of ordinary care (Giannini v. Southern Pacific Co., supra). We think the facts here bring the case under the rule announced in Thompson v. Los Angeles etc., Ry. Co., 165 Cal. 748, 134 P. 709, and Parmenter v. McDougall, 172 Cal. 306, 156 P. 460, and reaffirmed in Marchetti v. Southern Pacific Co., 204 Cal. 679, 683, 269 P. 529, 531, "that a passenger in a vehicle operated by another is bound to exercise ordinary care for his own safety, and that, if such passenger is aware that the operator is carelessly rushing into danger, it may be incumbent upon him to take steps for his safety." In other words, that it was incumbent upon the deceased to call the attention of the driver to the danger into which he was blindly driving.
There is no merit in respondent’s contention that the defense of contributory negligence is not available to defendant Gash, as contributory negligence is not pleaded by him. While it is generally true that contributory negligence of the plaintiff must be pleaded by defendant in order that he may rely upon it as a defense, it is available if the evidence of the plaintiff affirmatively shows such contributory negligence. 19 Cal.Jur. 681, 698; Robinson v. Western Pacific R.R. Co., 48 Cal. 426; Green v. Southern Pacific Co., 132 Cal. 254, 64 P. 255; Kenny v. Kennedy, 9 Cal.App. 350, 99 P. 384.
The depositions of defendants Bruce and Gash were read in evidence by the plaintiff, from which it affirmatively appears that the deceased was guilty of contributory negligence.
As what we have said disposes of the case upon its merits, it becomes unnecessary to discuss the points urged by appellants that the court should not have permitted the jury to find specially the amount each particular heir was entitled to receive from the total damage found, and that the court erred in refusing to give certain instructions. We might, however, say that, while such fact might not call for a reversal, the jury should not have been permitted to divide the total amount found between the heirs, fixing the loss of Frank Brennan at $1 and the other four heirs at $5,000 each. Under section 377 of the Code of Civil Procedure it is not intended that the amount recovered shall be divided into integral or proportional parts. Robinson v. Western States Gas Co., 184 Cal. 410, 194 P. 39.
As to the point urged that the court erred in refusing certain instructions, we may say that in our opinion the instructions correctly state the law, and should have been given, unless the principles they announce are embodied in other instructions. There is no claim that the instructions refused are covered by others with the exception of defendants’ instruction No. 4, which deals with the prudence and care a guest in an automobile must exercise, and we think the instruction quoted by respondent as given by the court is sufficient on this question.
The judgment is reversed.
I concur: TYLER, P.J.