Opinion
Rehearing Granted April 25, 1929.
In Bank.
Action by Lillie D. Smellie and others against the Southern Pacific Company and another. Judgment for defendants, and plaintiffs appeal.
Affirmed.
For opinion in department, see 269 P. 657.
Curtis, J., dissenting.
Appeal from Superior Court, Madera County; S. L. Strother, Judge.
COUNSEL
W. M. Conley, Philip Conley, and Matthew Conley, all of Fresno, for appellants.
L. L. Cory, of Fresno, Colley, Crowley & Gallagher and Cooley & Gallagher, all of San Francisco, Gallaher & Jertberg, of Fresno, and H. I. Maxim, of Madera, for respondents.
OPINION
PER CURIAM.
This case was originally decided in department. Because of the filing of persuasive petitions for hearing in bank, largely devoted to the question whether or not the disputable presumption ‘that a person takes ordinary care of his own concerns’ (section 1963, subd. 4, Code Civ. Proc.) created a conflict on an issue of fact as between said presumption and the direct testimony given by the witness Ireland, a hearing in bank was greated. On a re-examination of the cause and a particularly careful consideration of the point just referred to, the court is of the view that the appeal was properly decided by the department. For that reason, the opinion heretofore written by Mr. Justice SEAWELL as the department opinion is adopted as the decision of the court in bank, viz.:
This appeal is taken from a judgment for defendants upon a directed verdict returned by the jury in an action brought by the widow and four minor sons of Robert S. Smellie, deceased, to recover damages for the death of said decedent, who was killed when the automobile truck in which he was riding as the guest of defendant L. Ireland, the driver and owner thereof, was struck by a train of defendant Southern Pacific Company. The court held at the conclusion of plaintiffs’ case that the evidence established as a matter of law contributory negligence on the part of said decedent, and directed a verdict to be returned in favor of defendants. The correctness of this ruling is here challenged.
The accident occurred at about 5 o’clock p. m. on June 25, 1926, in the city of Madera. The truck in which decedent was riding, and which was being driven by defendant Ireland, was of the Reo manufacture, and was used by Ireland in a general trucking business conducted by him. Ireland was called by plaintiffs as their witness under the provisions of section 2055, Code of Civil Procedure. He testified that he turned off the state highway, on which he had been traveling in a northerly direction, into Ninth street. The situs of the accident seems to have been in an outlying district of the city of Madera. He proceeded easterly on Ninth street to a point between 20 and 25 feet from the westerly rail of a side track of defendant Southern Pacific Company which intersects Ninth street, and there brought his car to a stop to permit a freight train to pass. No signal of any kind was maintained at the intersection. The freight train was moving south at a speed of 5 or 6 miles an hour, and 6 or 8 cars remained to pass the intersection when Ireland brought his truck to a stop. East of the side track and parallel thereto was the main line track of the Southern Pacific Company. The distance beween the center line of the side track and the center line of the main track was 13 feet. Both Ireland and decedent had resided in Madera for many years, and Ireland testified as to his familiarity with the crossing. Doubtless the decedent was also generally familial with existing conditions. The moment the caboose, which was the rear car of the freight train, cleared the crossing, Ireland started his truck and crossed the side track, and, in an attempt to cross the main track, the autotruck was struck by the Fresno Flyer, north bound, which was traveling on the main track at a rate of speed estimated to be about 55 miles an hour. The accident happened so quickly that not more than an interval of a second intervened between the time Ireland saw the train and the time his truck was hit by it. He looked before starting, but the outgoing freight train blocked a view of the main track, and consequently his view to the south was obstructed, and he did not see the approaching passenger train. He listened, but did not hear the passenger train because of the noise made by the passing freight train. The distance which the passenger train traveled before it could be brought to a stop furnishes some evidence as to the speed at which it was moving. Upon cross-examination by counsel for the codefendant Southern Pacific Company, Ireland testified that both he and Smellie looked before Ireland started the truck, and Smellie, who was seated by his side, said, ‘It’s all clear; let’s go.’ The testimony of Ireland was not contradicted by that of any other witness. Respondents did not offer any evidence in their own behalf, but, upon the conclusion of plaintiffs’ case, made motions for nonsuits and directed verdicts, and the court granted the motions for directed verdicts, upon which the judgment appealed from was entered.
We are of the view that the evidence is susceptible of no reasonable interpretation under the rule of this state, but that as a matter of law decedent was contributorily negligent in advising Ireland to go forward when he made the remark, ‘It’s all clear; let’s go; ’ and hence we must sustain the action of the court below in taking the case from the jury and directing a verdict for defendants. Respondents do not contend that the negligence of Ireland was imputable to decedent, his guest. Decedent, however, was himself bound to act as a reasonably prudent man would act in similar circumstances. This is not a case where the guest, reposing complete confidence in the driver, fails himself to note the situation of possible danger, nor is it a case where a guest, observing an imminent and suddenly approaching peril, remains silent in the realization that the highest degree of prudence may consist in inaction, rather than meddlesome interference. The guest, being as fully aware of the circumstances creating the peril as was the driver, assumed to advise the driver that he could proceed in safety, and thereby consented to accept the risk to be encountered. It must be held that he has brought the misfortune upon himself, and that he can recover neither from the driver nor the third party whose negligence concurred in causing the collision. Ireland and the decedent were acquaintances, and the latter had been riding with the former for several hours prior to the accident. They had discussed the hauling of some freight which the decedent had in contemplation. At the moment of the accident, they were engaged in casual conversation as they awaited the passing of the freight train. We are unable to give any other construction to the request or advisory remark made by the decedent, ‘It’s all clear; let’s go,’ than that, whatever risk there might be in attempting to cross the railroad tracks, decedent was willing to assume and share it with Ireland. It amounted to the assumption of responsibility for all consequences that might flow from the attempt to cross the railroad tracks. Appellants suggest that said statement made by the decedent should be limited to the crossing of the first track or switch, and not to the main track. There can be no doubt that decedent was aware of the existence of the two parallel tracks, and that said remark applied to the situation as it was presented by the physical fact. Besides, it would have been indulging in folly for decedent to have advised Ireland as to the obvious condition of the track over which the train had just passed.
It is strongly insisted by appellants that the statement or remark attributed to decedent should not have been considered for any purpose. We cannot agree with this contention. Ireland was called to the stand to show the circumstances of the accident. We do not understand it to be the rule that that portion of a transaction which is favorable to a party calling a witness may be inquired into and his adversary denied the right to elicit other parts of the identical transaction which may put a different aspect upon the case. Certainly section 2055, Code of Civil Procedure, was not intended to work any such result. We think the remark formed a material part of the transaction, if it is not indeed in the nature of res gestae. Ireland was asked by plaintiffs if decedent was not his guest, and he replied that he was. This alone entitled the defendants to bring out the fact as to whether decedent by his participation in the movement of the truck had not taken himself out of the class into which Ireland, by his conclusion, had placed him.
The effect of testimony elicited under the provisions of section 2055, Code of Civil Procedure, was clearly stated in Figari v. Olcese, 184 Cal. 775, 195 P. 425, 15 A. L. R. 192, as follows:
‘There is no merit in appellant’s objection that no testimony was taken in behalf of defendants, because of the fact that the defendants were called only as plaintiff’s witnesses. Section 2055, Code of Civil Procedure, provides that a party calling and examining as a witness an adverse party ‘shall not be bound by his testimony’ and that the testimony of such adverse witness ‘may be rebutted by the party calling him.’ This provision does not mean that such testimony may not be given its proper weight, but merely, as it declares, that the party calling such witness shall not be concluded from rebutting his testimony, or from impeaching the witness. Dravo v. Fabel, 132 U.S. 487, 33 L.Ed. 421, 10 S.Ct. 170, see, also, Rose’s U.S. Notes. In other words, such testimony is to be treated as thought given on cross-examination.’
See, also, Goehring v. Rogers, 67 Cal.App. 253, 227 P. 687; Gates v. Pendleton, 71 Cal.App. 752, 236 P. 365.
No attempt was made to impeach Ireland or to rebut his testimony. But, if it be conceded that, strictly speaking, the testimony objected to should not have been considered by the court as a part of the plaintiffs’ case, it was admissible as a part of the defendants’ case, and its effect, irrespective of order, was fatal to plaintiffs. We are of the opinion, however, that it was properly before the court and jury for consideration.
The law as declared in Smith v. Maine Central R. R. Co., 87 Me. 339, 32 A. 967, is strikingly applicable to the facts of the instant case. The rule is well settled that a guest is not responsible or chargeable with the contributory negligent acts of the driver of an automobile. This rule, however, does not offer him immunity from culpability in cases where he acquiesces in or encourages and advises the encountering of risks which are obviously hazardous to his personal security and safety, such as no reasonably prudent person should assume.
Appellants contend that the disputable presumption ‘that a person takes ordinary care of his own concerns’ (section 1963, subd. 4, Code Civ. Proc.), created a conflict on an issue of fact as between said presumption and the direct testimony given by witness Ireland to the effect that the directions or advice were given to him to move the truck forward, and that said issue should have been submitted to the jury. As against positive testimony, this was but a bare presumption, not supported or fortified by any independent fact in the case. ‘Disputable * * * presumptions, while evidence, are evidence the weakest and least satisfactory. They are allowed to stand, not against the facts they represent, but in lieu of proof of them. The fact being proven contrary to the presumption, no conflict arises; the presumption is simply overcome and dispelled.’ Savings & L. Soc. v. Burnett, 106 Cal. 514, 39 P. 922. The trial court having heard the witness Ireland testify and having observed his manner was unquestionably of the opinion that, should the jury return a verdict in favor of the plaintiffs, it would be its bounden duty to set the verdict aside. This being so, under a long line of decisions of this state, the trial court was acting in the purview of its duty when it directed the jury to return a verdict in favor of the defendants. We cannot say, in the circumstances of the case, that the court’s direction was not fully sustained by the case as presented.
Further, it is argued that the motions for directed verdicts on the ground of contributory negligence of the deceased were improperly granted because contributory negligence was not made an issue by the pleadings. It must be conceded that the allegation, that the injuries were caused solely and alone because of the negligence and want of care of the driver of the truck and the decedent was an insufficient plea of contributory negligence. Crabbe v. Mammoth Channel G. Min. Co., 168 Cal. 500, 143 P. 714; Hughes v. Warman Steel Casting Co., 174 Cal. 556, 163 P. 885; Off v. Crump, 40 Cal.App. 173, 180 P. 360. However, evidence relevant to the issue of contributory negligence was introduced without objection on the part of plaintiffs that it was inadmissible under the pleadings because contributory negligence was not properly pleaded, and upon argument of the motions for directed verdicts and nonsuits no question was raised on behalf of plaintiffs as to the defective plea of the issue, but, on the contrary, it was assumed that it was involved in the case. Where the defense of contributory negligence is considered as properly pleaded throughout the trial, an objection for the first time on appeal that no such issue was made by the pleadings will not be of any avail to the objecting party. Western States, etc., Co. v. Bayside L. Co., 182 Cal. 140, 187 P. 735; Schuh v. Herron Co., 177 Cal. 13, 169 P. 682; Coffman v. Singh, 49 Cal.App. 342, 193 P. 259. Ireland at the conclusion of the evidence was granted leave to set up the defense of contributory negligence on the part of the deceased. Defendant Southern Pacific Company attempted to plead by its answer contributory negligence on the part of both Ireland and the deceased. Its answer alleged that the accident was caused ‘solely and alone’ by the contributory negligence of said Ireland and deceased. No objection was taken by demurrer or motion as to the insufficiency of said allegation, and no specific objection was made by plaintiff as to the admission of the evidence on the ground that contributory negligence had not been sufficiently pleaded, but it was resisted by plaintiffs on other grounds. No doubt the court would have permitted an amendment which would have cured the defective pleading had the plaintiffs made the point.
The judgment appealed from is affirmed.
CURTIS, J., dissents.