Opinion
Rehearing Granted April 28, 1930.
In Bank.
Action by Lillie D. Smellie and others against the Southern Pacific Company and another. Judgment for defendants, and plaintiffs appeal.
Reversed. Superseding opinion in 276 P. 338.
RICHARDS, J., dissenting.
Appeal from Superior Court, Madera County; S. L. Strother, Judge.
COUNSEL
Conley, Conley & Conley, W. M. Conley, Philip Conley, and Matthew Conley, all of Fresno, for appellants.
J. Maxwell Peyser, of San Francisco, and Carter & Peterson and Philip M. Carey, both of Oakland, J. E. Rodgers, A. F. Bray, and Mortimer B. Veale, all of Martinez, and Robert E. Hatch, of San Francisco, amici curiae.
L. L. Cory, of Fresno, Devlin & Devlin & Diepenbrock, of Sacramento, and W. H. Stammer, of Fresno, for respondent Southern P. Co.
Cooley & Gallagher and Cooley, Crowley & Gallagher, all of San Francisco, Gallaher & Jertberg, of Fresno, and H. I, Maxim, of Madera, for respondent Ireland.
J. Hampton Hoge, of San Francisco (A. Dal Thomson, of San Francisco, of counsel), amici curiae.
OPINION
CURTIS, J.
The general facts in this case were correctly stated in our former opinion (276 P. 338, 339) rendered in this court. This statement of facts is as follows:
‘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 * * * 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 between 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 familiar 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 auto-truck 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 verdict, and the court granted the motions for directed verdicts, upon which the judgment appealed from was entered.’
In granting defendants’ motion for a directed verdict, the trial judge expressly stated that he discarded entirely the testimony of the defendant Ireland, that deceased had said to him just before the truck was started on its fatal trip across the railroad tracks, ‘It’s all clear, let’s go.’ He based his order for a directed verdict upon the facts and circumstances shown by the evidence to have existed at and immediately prior to the collision, leaving entirely out of consideration the statement of Ireland that the deceased had said, ‘It’s all clear, let’s go.’ The trial judge disregarded this testimony of Ireland, for the reason, as stated by him, that the jury in the case, if the cause should be submitted to them for decision, had the right, if they disbelieved the testimony of Ireland, to reject the whole of it. Notwithstanding the fact that the trial court disregarded the statement of Ireland as to what the deceased said just prior to the collision, the respondents have insisted during all the stages of this appeal that the statement attributed to the deceased by the defendant Ireland was not only properly before the court, but that it of itself furnished sufficient legal grounds to justify the order of the trial court directing a verdict in favor of the respondents. In so doing, however, respondents have not abandoned the ground upon which the trial court granted said motion, and they still insist that the order granting a directed verdict should be affirmed, irrespective of any question of this testimony of the defendant Ireland.
In our former opinion, which was first rendered in department ([Cal. Sup.] 269 P. 657), and thereafter and on rehearing adopted by the court in bank ([Cal. Sup.] 276 P. 338), the judgment was affirmed upon the ground that the evidence before the court, inclusive of that given by the defendant Ireland as to the last words of the deceased, showed, as a matter of law, that said deceased was guilty of contributory negligence. The rendition of this opinion brought forth, not only a petition for a rehearing from the appellants and an answer thereto by the respondents, but numerous amici curiae have been granted permission, and have taken advantage of such leave, to file briefs in support of the respective contentions of the parties hereto.
The legal battle thus waged by these various participants has centered around Ireland’s testimony as to the decedent’s last words, ‘It’s all clear, let’s go,’ and the force and effect to be given to this testimony. The appellants, and those amici curiae arrayed on the side of the appellants, contend that the testimony of Ireland in this regard only produced a conflict in the evidence upon the question of whether the deceased was guilty of contributory negligence, and therefore it was the duty of the court to disregard this conflict and submit the case to the decision of the jury. The basis of the argument by the appellants, and those allied with them, is that the plaintiffs at the trial in the lower court were entitled to avail themselves of the presumption that the deceased took ordinary care of his own concerns (section 1963, subd. 4, Code Civ. Proc.), and that the testimony of Ireland as to the statement made by the deceased only produced a conflict in the evidence, which conflict, upon a motion for a directed verdict, the court was in duty bound to disregard and submit the issue thus tendered to the consideration of the jury.
On the contrary, the respondents, and those amici curiae supporting the cause of the respondents, contend that the presumption relied upon by appellants, being merely a disputable presumption, was entirely overcome and dispelled by the testimony of Ireland, and therefore that the undisputed evidence before the trial court showed that the deceased was guilty of contributory negligence, in that he advised Ireland that the way was clear and that they should proceed to cross the railroad tracks. Accordingly, the respondents and those amici curiae insist that the order of the trial court in directing a verdict upon this state of the evidence was proper, and that the judgment based thereon should be affirmed.
The question is, therefore, directly raised and presented as to whether this presumption, that the deceased exercised due care for his safety, has been overcome and dispelled as a matter of law by the testimony of Ireland. That a presumption is evidence and may in certain cases outweigh positive evidence adduced against it has long been the settled law of this state. People v. Milner, 122 Cal. 171, 54 P. 833; Sarraille v. Calmon, 142 Cal. 651, 76 P. 497; People v. Siemsen, 153 Cal. 387, 95 P. 863; Pabst v. Shearer, 172 Cal. 239, 156 P. 466; Thompson v. Davis, 172 Cal. 491, 157 P. 595; Gilmour v. North Pasadena Land, etc., Co., 178 Cal. 6, 171 P. 1066; Olsen v. Standard Oil Co., 188 Cal. 20, 204 P. 393; Mar Shee v. Maryland Assurance Corporation, 190 Cal. 1, 210 P. 269; Pacific Portland Cement Co. v. Reinecke, 30 Cal.App. 501, 158 P. 1041; Grantham v. Ordway, 40 Cal.App. 758, 182 P. 73, 76.
A few quotations from the foregoing authorities will, we think, remove all doubt from this question. In People v. Milner, supra, at page 179 of 122 Cal., 54 P. 833, 837, the court said: ‘Against a proved fact, or a fact admitted, a disputable presumption has no weight; but, where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven, and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.’ In Sarraille v. Calmon, supra, at page 655 of 142 Cal., 76 P. 497, 498, the court said: ‘The presumption of nonpayment arising from possession of uncanceled notes, admittedly executed by defendant, was evidence that they were not paid, and produced a conflict with the evidence of defendant’s witnesses.’ In People v. Siemsen, supra, at page 390 of 153 Cal., 95 P. 863, 865, we find the following language: ‘But the court, in determining whether or not to accept Mr. Greeley’s testimony, had a right to consider the presumptions raised by law. One of these is that ‘official duty has been regularly performed’; another that ‘a writing is truly dated.’ * * * These presumptions, while disputable, are in themselves evidence (citing authorities) and will support a finding made in accordance with them, even though there be evidence to the contrary.’ In Pabst v. Shearer, supra, at page 242 of 172 Cal., 156 P. 466, 467, this court stated the rule as follows: ‘It must be remembered that a presumption declared by statute, although disputable, is itself evidence, and that it is for the trial court to say whether the evidence offered to overthrow the presumption has sufficient weight to effect that purpose.’ In Thompson v. Davis, supra, at page 493 of 172 Cal., 157 P. 595, 596, this court again said: ‘Under the express provision of section 164 of the Civil Code, as that section has read since the year 1897, such deed to the wife raised the presumption that the title was thereby vested in her as her separate property. This presumption is, to be sure, not conclusive. ‘It may be overcome by evidence sufficient to satisfy the court that the property in question, although conveyed to the wife, was in fact community property.’ (Citing authority.) But the presumption, ‘although disputable, is itself evidence, and * * * it is for the trial court to say whether the evidence offered to overthrow the presumption has sufficient weight to effect that purpose.’’ In Olsen v. Standard Oil Co., supra, at page 24 of 188 Cal., 204 P. 393, 395, this court sustained an instruction in the following words: ‘The presumption is that every man obeys the law and the presumption in this case is that the plaintiff was traveling at a lawful rate of speed and on the proper side of the highway at all times. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence.’ In Pacific Portland Cement Co. v. Reinecke, supra, at page 504 of 30 Cal.App., 158 P. 1041, 1043, we find the following language: ‘The presumptive evidence of the time of the making of the indorsement and guaranty and the consideration therefor may be resorted to in aid of the findings even though it be assumed, as counsel for the defendant contends, that it stands alone and was opposed by direct evidence to the contrary. The general rule that as against a proved fact, or a fact admitted, a disputable presumption has no weight, is subject to the exception that where, as in the present case, an endeavor is made to establish a fact contrary to the presumption, the fact in dispute still remains to be determined upon a consideration of all of the evidence including the presumption.’ In Mar Shee v. Maryland Assurance Corporation, supra, at page 7 of 190 Cal., 210 P. 269, 272, this court has again said: ‘There seems to be some confusion in the decisions of this state with respect to the extent to which under various circumstances presumptions of law are to be regarded as evidence of facts. The Code expressly declares them to be evidence (Code Civ. Proc. § § 1957, 1963), and admonishes the trial judge to instruct the jury on all proper occasions ‘that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a * * * presumption.’ Code Civ. Proc. § 2061, subd. 2. Among the decisions of this court recognizing and applying the foregoing rule may be mentioned the following: Sarraille v. Calmon, 142 Cal. 651, 76 P. 497; Adams v. Hopkins, 144 Cal. 19, 77 P. 712; Moore v. Gould, 151 Cal. 723, 91 P. 616; People v. Siemsen, 153 Cal. 387, 390, 95 P. 863; Freese v. Hibernia Sav., etc., Soc., 139 Cal. 392, 73 P. 172; Gilmour v. North Pasadena Land, etc., Co., 178 Cal. 6, 171 P. 1066.’
The presumption, therefore, that the deceased exercised ordinary care for his safety was evidence in the present action in favor of the plaintiffs. Did the testimony of defendant Ireland, which was contradictory to this presumption merely produce a conflict in the evidence, or did it entirely overcome and dispel it?
In the case of Mar Shee v. Maryland Assurance Corporation, supra,, this court held that, where a fact is proved against a party relying on the presumption ‘by the uncontradicted testimony of the party himself or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence; and that, when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case.’ From the rule thus enunciated in this last-cited case, it would appear that a fact which will dispel a presumption as a matter of law can only be proven by the admission or testimony of the party relying on the presumption, or by his witnesses.
In the present action, as already stated, Ireland, although examined by the plaintiff, was called under section 2055 of the Code of Civil Procedure. This section reads as follows: ‘A party to the record of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of any corporation which is a party to the record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness when so called, may be examined by his own counsel, but only as to the matters testified to on such examination.’
It will be noted that this section provides in the first place that a party to the record ‘may be examined by the adverse party as if under cross-examination.’ Furthermore, ‘the party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence.’
This section of the Code was enacted in 1917. Prior to its enactment, a party might call an adverse party as a witness if he desired to do so, but he was obliged to call him as his own witness, and he was bound by his testimony in the same manner and to the same extent as he was by other witnesses called by him. This rule often worked a hardship on litigants, and often prevented the true facts of the case from being brought out in the evidence. It was to temper the rigor of this rule that section 2055 of the Code of Civil Procedure was enacted. It is a statute remedial in character, and as such should receive a construction by the courts which will carry into effect and accomplish the intent and purpose of the Legislature in enacting it. This intent was, as we read the section, to enable a party to an action to call an adverse party as a witness for the purpose of elicting such facts as said witness may testify to which are favorable to the party calling him, without being bound by any adverse testimony which said witness may give. Only by such construction can the full remedial purposes of said legislation be effected. Not only so, but we think the express terms of said section clearly and plainly indicate that such was the purpose of the legislature in the enactment of said section. As before noted, the adverse party, when called as a witness, is examined by the party calling him ‘as if under cross-examination’ and the party calling him ‘shall not be bound by his testimony.’ It is difficult to conceive of language more direct and explict. It can have but one meaning, in our opinion, and that is the meaning which we have above given to it. Such a witness does not stand in the same relation to the party calling him as does a witness who is called under ordinary conditions. He is more in the nature of a witness of the adverse party. A party is expressly forbidden to cross-examine his own witness, but when he calls an adverse party as a witness he is expressly given the right to examine him under the rules of cross-examination. A party calling a witness under the ordinary rules of procedure is bound by the testimony of such witness, but by the express provisions of section 2055, Code of Civil Procedure, the very opposite rule prevails. Such a witness has none of the characteristics of a witness called by a party under the ordinary rules of procedure, but many of the characteristics of a witness called by the adverse party.
This construction of section 2055, Code of Civil Procedure, is not new in this state. In Cioli v. Kenourgios, 59 Cal.App. 690, 697, 211 P. 838, 841, the present question was before the court, and it was held: ‘The fact that plaintiff called the alleged conspirators to the witness stand did not compel approval by him of their testimony. He could use their appearance on the stand, their words, their acts— in fact anything they could furnish in his favor, and reject the rest. The salutary provision of section 2055 of the Code of Civil Procedure * * * was designed to prevent as far as possible parties to an action from perpetrating fraud and dishonesty. It strips them of former barriers used for shielding falsehood.’
In the case of Grantheam v. Ordway, supra, the plaintiff called as a witness one of the defendants, Ordway, under said section 2055. The action was one to recover damages for injuries sustained in an automobile accident, and was brought against said Ordway and the Pacific Acreage Company. The automobile was owned by the company, but was driven by its codefendant Ordway at the time of the accident. Ordway testified that he was on business of his own at the time of the accident, and that he was in no way acting for the company or transacting business for the company at the time. The trial court granted a nonsuit, and on appeal the judgment was reversed. A petition to have the case heard by the Supreme Court was denied. This case is on all fours with the present action. It was written by Chief Justice Waste, then presiding justice of said District Court of Appeal and was concurred in by Justice Richards, then on said court, and Justice Nourse, acting temporarily as a justice of said court. As to the construction to be placed on section 2055, Code of Civil Procedure, the court said: ‘Furthermore, plaintiff is not bound by Ordway’s testimony. ‘A party to the record of any civil action * * * may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence.’’
That case is of further importance by reason of its ruling upon the question of whether the testimony of Ordway destroyed the presumption that the automobile was being used for the benefit of the Pacific Acreage Company by reason of its ownership thereof at the time of the accident. Upon this phase of that case the court said: ‘The automobile being admitted to belong to the defendant Pacific Acreage Company, a presumption arose that it was used for its benefit and on its own account. That presumption was not destroyed as matter of law by the testimony of defendant Ordway. ‘Even though his explanation of the use of the car would absolve him, if credited, the question of whether it should be credited was one of fact for the jury.’ (Citing authorities.)’ On this same subject the court in that case also said: ‘Whenever, under a given state of facts a presumption arises, such presumption is itself evidence. Courts and jurors are not bound to decide in conformity with the declaration of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption, or other evidence, satisfying their minds. Code Civ. Proc. § 2061, subd. 2. A presumption, even if disputable, will raise a conflict which is sufficient to support a finding made in accordance therewith, even though there be evidence to the contrary. Whether a presumption has been controverted is a question of fact. (Citing authorities.)’
The effect of evidence given by an adverse party under section 2055 was commented on by this court in the recent case of Marchetti v. Southern Pacific Co., 204 Cal. 679, 269 P. 529, 532. In that case we said: ‘While the two trainmen, who were called for cross-examination under section 2055 of the Code of Civil Procedure, testified that they gave the required signals, both by ringing the bell and sounding the whistle, the plaintiffs, especially upon a motion for a nonsuit, would not be concluded by their evidence; it being the duty of the court upon a motion for a nonsuit to accept the evidence most favorable to the plaintiffs.’
As opposed to the foregoing rule and the authorities cited in support thereof, the respondents rely principally upon the case of Figari v. Olcese, 184 Cal. 775, 195 P. 425, 428, 15 A. L. R. 192, but we find nothing in that case contrary to the views hereinbefore expressed, or to the authorities last cited. In that case the court held, upon the trial of an action in which the evidence had been produced by the calling of an adverse witness under section 2055 of the Code of Civil Procedure, that the evidence of such witness might be given its proper weight in the final determination of the issues of the case. As bearing out our construction of said section, this court in that case held: ‘In other words, such testimony is to be treated as though given on cross-examination.’
Neither do we think that in any of the following cases, cited by respondent, is there anything to be found which is contrary to the construction we have placed upon section 2055 of the Code of Civil Procedure: Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697; Preo v. Roed (Cal.App.) 278 P. 92; Andrews v. Waldo (Cal. Sup.) 272 P. 1052; Heiter v. Hirschfeld (Cal. Sup.) 271 P. 1051; Koster v. Southern Pacific Co. (Cal. Sup.) 279 P. 788. In Brown v. Chevrolet Motor Co., supra, and in Koster v. Southern Pacific Ry. Co., supra, no reference is made to section 2055. While in the other cases witnesses were called under said section, no question was presented nor discussed in the opinion of any of these cases as to the force and effect of such evidence against a disputable presumption.
Our conclusion, therefore, is that the testimony of a witness called under section 2055 of the Code of Civil Procedure is not, when weighing it against a presumption, to be considered, nor is it really, evidence of the party calling such witness, and that the evidence thus produced does not dispel a presumption contrary thereto, but in favor of the party calling such adverse witness. This testimony is, of course, evidence in the case and may be considered in determining the issues of the case upon the trial or final hearing by the court, or, if the case is before a jury, by the jury. When the action is before a jury, however, the duty of weighing this evidence is with the jury and not with the court upon a motion for a nonsuit or directed verdict.
Besides, the testimony of Ireland has certain elements of weakness which render it of doubtful probative value, and which, we think, presents additional reasons why it should not, as a matter of law, be held to be conclusive of the fact to which it relates. In the first place it is the testimony of an adverse party, and a jury may disregard the testimony of such a witness as against a presumption if the latter satisfies them. Adams v. Hopkins, 144 Cal. 19, 77 P. 712; Everett v. Standard Accident Insurance Co., 45 Cal.App. 332, 187 P. 996; Keating v. Morrissey, 6 Cal.App. 163, 91 P. 677.
Then again the testimony of Ireland related to a declaration of another person. Evidence of the declarations or oral admissions of a party are always received with caution. Code Civ. Proc., § 2061, subd. 4. The reason for this rule is that: ‘In most cases it is impossible, however honest the witness may be, for him to give the exact words in which the declaration or admission was made. Some times even the transposition of the words of a party may give a meaning entirely different from that which was intended to be conveyed. The slightest mistake or failure of recollection may totally alter the effect of the declaration or admission.’ 10 Cal.Jur., p. 1081; Davis v. Davis, 26 Cal. 23, 44, 85 Am. Dec. 157.
A third inherent weakness to be found in the testimony of Ireland is that it purports to give the statements or declarations of a deceased person. Regarding testimony of this character, this court said: ‘The evidence is of oral admissions against interest by a man whose lips are sealed in death. What then does the law say of such evidence (assuming now its admissibility)? The Code of Civil Procedure declares (2061, subd. 4) that the evidence of oral admissions of a party ought to be received with caution by the jury. In Mattingly v. Pennie, 105 Cal. 514, 39 P. 200, 45 Am. St. Rep. 87, this court in bank said, ‘no weaker kind of testimony could be produced.’ Again in bank (Austin v. Wilcoxson, 149 Cal. 24, 84 P. 417) this court has said: ‘It is not stating it too strongly to say that evidence so given under such circumstances must appear to any court to be in its nature the weakest and most unsatisfactory.’’ Estate of Emerson, 175 Cal. 724, 727, 167 P. 149, 151. We might go on and cite many other authorities, but the above are sufficient for our present purpose. To invoke a rule which would deprive a party of the right to have a jury pass upon the weight of evidence of this character would be contrary to an unbroken line of decisions of this court, and its effect would be in many instances to deprive a party to an action of the right, guaranteed to him by the law of this state, to a trial by jury.
We are, therefore, of the opinion that the testimony of Ireland, as against the presumption that the deceased took ordinary care of his own concerns, was not sufficient as a matter of law to dispel said presumption, but, on the other hand, merely tended to create a conflict with said presumption, which it was the right of the appellants to have passed upon by the jury in its final deliberations, and not by the court on a motion for a directed verdict.
The respondent, the Southern Pacific Company, contends that, as between it and the appellants, the testimony of Ireland must be regarded as evidence of the appellants, and, therefore, under the rule enunciated in Mar Shee v. Maryland Assurance Corporation, supra, it entirely overcame and dispelled the presumption of due care on the part of the deceased. Said respondent cites no authority to support this contention, and we think to assent to it would be to place an unauthorized limitation upon the remedial provisions of section 2055 of the Code of Civil Procedure.
However, both the respondents contend that, aside from the testimony of Ireland, the evidence conclusively shows that the deceased was guilty of contributory negligence in not avoiding the danger which was apparent to him from the presence of the railroad track.
We have already set forth a general statement of facts in the first part of this opinion. There are minor details not included in the foregoing general statement, but we do not think that it will be necessary to set the evidence out more fully than has already been done. From the facts ad they are contained in the record, it appears that the defendant Ireland was in sole control of the truck in which he and the deceased were riding just prior to and at the time of the collision; that the deceased was merely a guest ofIreland; and that the deceased was in no degree responsible for Ireland’s driving his truck in front of the approaching train. Under such circumstances the negligence of Ireland cannot be imputed to the deceased. Carpenter v. Atchison, etc., Ry. Co., 51 Cal.App. 60, 195 P. 1073; Ilardi v. Central California T. Co., 36 Cal.App. 488, 172 P. 763; Nichols v. Pacific Electric Ry. Co., 178 Cal. 630, 174 P. 319; Bresee v. Los Angeles Traction Co., 149 Cal. 131, 85 P. 152, 5 L. R. A. (N. S.) 1059; Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, 137 P. 31; Marchetti v. Southern Pacific Co., 204 Cal. 679, 269 P. 529. It follows, therefore, that there must have been some act performed by the deceased, or a failure to do some act required of him, which proximately contributed to his death, before he could be held to be guilty of contributory negligence. The evidence is silent as to any overt act on the part of the deceased, aside from the statement of Ireland already quoted, which, in the least degree, can be said to show that the deceased was guilty of negligence. As to his failure to take the precautions which a person of ordinary prudence would take in the position in which he was placed in order to avoid the danger incident to the crossing of the railroad track under the circumstances shown, we think the evidence is far from satisfactory. There is no evidence that he did not look and listen for the train; in fact, the evidence is to the contrary. Ireland, after the freight train had passed, according to his own statement as shown in evidence, ‘pulled right in behind the caboose’ and started across the tracks. The distance between the center lines of the two tracks was only thirteen feet. Ireland after starting the last time did not stop until he was on the main track when he was hit by the north-bound train. It must all have happened in a very few seconds of time. Of course, as respondents suggest, the deceased might have stepped from the car before Ireland started it up the last time. But there is no evidence that he then knew, or had any reason to believe, that Ireland intended to cross the tracks without looking for the approaching train. If he were ever aware of Ireland’s intention to cross the main track in front of the train, it must have been only an instant before Ireland actually drove upon the main track. It was evidently then too late for him to leave the machine or to otherwise avoid the danger. Under these circumstances, we seriously doubt whether the action of the deceased just preceding the collision amounted as a matter of law to contributory negligence on his part. In the recent case of Shields v. King (Cal. Sup.) 277 P. 1043, 1044, we quoted with approval the following rule enunciated in prior decisions of this court: ‘The duty of a passenger to remonstrate against excessive speed or to withdraw from the vehicle, a reasonable opportunity therefor being afforded, is not absolute, the question whether by failing to do either he is wanting in ordinary care being dependent upon the circumstances of the particular case.’
‘Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his injury. * * * In all other cases the question of contributory negligence is a question of fact for the jury.’ Flores v. Fitzgerald, 204 Cal. 374, 268 P. 369, 370; Borland v. Key System Transit Co. (Cal. Sup.) 270 P. 194.
The respondents, in support of their contention that the deceased was guilty of contributory negligence, cite the two cases of Heitman v. Pacific Electric Ry. Co., 10 Cal.App. 397, 102 P. 15, and Barnett v. Atchison, etc., Ry. Co. (Cal.App.) 278 P. 443. In the first of these two cases, the deceased and one Caseboom were associated in the transfer business. They were riding together in a wagon drawn by a pair of mules with Caseboom driving. They drove upon the railroad tracks of the defendant, and a collision occurred between the car of the defendant and the wagon in which Caseboom and the deceased were riding. It was conceded in that case ‘that the negligence of the driver of the mules is to be imputed to and regarded as the act of the deceased.’ In view of this admission, the only question passed upon by the court in that case was whether or not the driver was guilty of negligence. That case, therefore, can have no bearing upon the question before us, which concerns entirely the negligence of one who was riding as a guest.
In the case of Barnett v. Atchison, etc., Ry. Co., supra, five men were in an automobile, one of whom was driving said machine. They were all held to be guilty of contributory negligence. In that case, however, the automobile was being backed upon the railroad track by the driver at a speed of about five miles per hour. All of the men were perfectly familiar with the conditions surrounding the crossing and knew of the frequency of trains on the track. The bell of the engine was ringing continuously. Six or seven hundred feet from the crossing the engineer had blown the station whistle, and, when the automobile was approximately fifteen feet from the track, the engineer sounded four sharp warning whistles. While they were thus approaching the crossing, the driver was looking to the left and to the rear of his machine. The three men in the rear seat of the machine had their heads down and were examining some minnows in a sack on the floor of the machine. None of them either looked or listened for an approaching train before their machine was driven onto the railroad track, or took any other precaution whatever to observe the danger into which they were being driven. Parks, who was not a party to said action, and who was on the front seat with the driver, observed the train and called to his companions to jump. He jumped free of the machine and was not injured. The three men in the rear seat and the driver were seriously injured and three of them died as a result of their injuries. No mention of the rule applicable to guests is to be found in that entire case. The four men injured were treated as if they were equally guilty of negligence. The uncontradicted evidence shows that none of these made any attempt whatever to ascertain the presence of the train upon the track or to escape from the danger into which they were heedlessly running. Furthermore, we think the evidence in that case shows that all five of these men were interested in a common venture, and that the driver of the machine was simply acting as the representative of the others.
Neither of these cases, in our opinion, are applicable to the facts in the present action. The facts before us do not, we think, point unerringly to the negligence of the deceased. On the other hand, they show that, as far as the deceased was concerned, he did nothing to bring upon himself the injury which resulted in his death. It is problematical whether he could have taken any action, after he realized he was in danger, which would have enabled him to escape from injury. Under these circumstances, we think it was for the jury to say as a matter of fact, and not for the court to hold as a matter of law, whether the deceased was guilty of contributory negligence.
On behalf of the respondent Ireland, it is further argued that by the recent amendment of the California Vehicle Act, whereby a new section known as section 141 3/4 was added to said act, appellants’ cause of action against Ireland, if any ever existed, has abated. Section 141 3/4 of the California Vehicle Act (St. 1929, p. 1580) was enacted at the recent meeting of the Legislature and became effective August 14, 1929. It reads in part as follows:
‘Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of California, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. In the event that such person while so riding as such guest is killed, or dies as a result of injury sustained while so riding as such guest, then neither the estate nor the legal representatives or heirs of such guest shall have any right of recovery against the driver or owner of said vehicle by reason of the death of the said guest. * * *
‘Nothing in this section contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle; provided, that in any action for death or for injury or damage to person or property by or on behalf of a guest or the estate, heirs or legal representatives of such guest, the burden shall be upon plaintiff to establish that such intoxication, wilful misconduct or gross negligence was the proximate cause of such death or injury or damage.
‘For the purpose of this section the term ‘guest’ is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor.’
The present action was instituted, and the appeal from the judgment therein was perfected long prior to the enactment of said section 141 3/4. Appellants’ right to maintain this action is statutory and arises by virtue of the provisions of section 377 of the Code of Civil Procedure. No such right of action existed under the common law. 8 Cal.Jur. pp. 948 to 951; Clark v. Goodwin, 170 Cal. 527, 150 P. 357, L. R. A. 1916A, 1142; Dickinson v. Southern Pacific Co., 172 Cal. 727, 730, 158 P. 183; McLaughlin v. United Railroads, 169 Cal. 494, 147 p. 149, L. R. A. 1915E, 1205, Ann. Cas. 1916D, 337. Section 377 gives to the heirs or personal representative of a person killed by the wrongful act of another a right of action for damages against the person causing his death. The right of action given under said section of the Code is based upon the want of ordinary care on the part of the person wrongfully causing the death of the person killed. By section 141 3/4 of the California Vehicle Act, above quoted, when the person killed by the wrongful act of another is riding at the time as a guest of the party causing his death, the latter is liable in damages only in case of his own intoxication, willful misconduct, or gross negligence. This section of the act must, therefore, be held to be a limitation upon the right to sue for the death of one killed by the wrongful act of another given by section 377 of the Code of Civil Procedure. It does not, however, deprive the heirs or legal representatives of the right to sue for the death of the person wrongfully killed while riding as a guest of another, but only requires proof of a greater degree of negligence, that is, gross negligence, or willful misconduct, or intoxication. Gross negligence has been defined to be ‘the want of slight diligence.’ Redington v. Pacific P. T. C. Co., 107 Cal. 317, 40 P. 432, 48 Am. St. Rep. 132; Walther v. Southern Pacific Co., 159 Cal. 769, 775, 116 P. 51, 37 L. R. A. (N. S.) 769. Undoubtedly the appellants in this action made out at least a prima facie case of gross negligence against the respondent Ireland. If the deceased were not guilty of contributory negligence as a matter of law, then the appellants have made out a case for the jury even under section 141 3/4 of the California Vehicle Act. It is true the appellants did not plead gross negligence as against the respondent Ireland, but in the event of another trial the appellants should be permitted to so amend their complaint as to bring themselves within the terms of said section 141 3/4. Especially should this privilege be accorded them in view of the state of evidence before us which makes out a prima facie case of gross negligence against the respondent Ireland.
Appellants insist, however, that the provisions of section 141 3/4 of the California Vehicle Act are not retroactive, and that they have no application to pending actions, or to any cause of action which arose prior to the going into effect of said section. We find the general rule upon this section stated as follows: ‘While the legislature has power to pass retroactive laws which do not impair the obligations of contracts or disturb vested rights, yet it is established, not only as a doctrine of the common law, but as a principle of general jurisprudence, that no statute or constitutional provision shall be so construed as to give it a retroactive effect, to divest individuals of rights vested previous to its passage, or to affect pending litigation, unless such intent is expressly declared, or necessarily implied in the language of the provision to be construed.’ 5 Cal.Jur., p. 750. The rule thus enunciated finds support in the following decisions from the courts of this state: Montecito County Water District v. Doulton, 193 Cal. 338, 224 P. 747; East Bay Municipal Utility District v. Garrison. 191 Cal. 680, 218 P. 43; Estate of Frees, 187 Cal. 150, 201 P. 112; Vanderbilt v. All Persons, 163 Cal. 507, 126 P. 158; Willcox v. Edwards, 162 Cal. 455, 123 P. 276, Ann. Cas. 1913C, 1392; Bascomb v. Davis, 56 Cal. 152; State Commission in Lunacy v. Welch, 20 Cal.App. 624, 129 P. 974; James v. Oakland Traction Co., 10 Cal.App. 785, 103 P. 1082. ‘It is a canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intention.’ In re Matter of Clyde E. Cate (Cal. Sup.) 279 P. 131, 133.
We find nothing in section 141 3/4 of the California Vehicle Act from which we can draw the slightest indication that its provisions should operate retroactively. In fact, the entire phraseology of the section indicates an intention to apply said section to actions which might arise after its enactment and effective date.
Respondent Ireland relies upon the case of Moss v. Smith, 171 Cal. 777, 155 P. 90, and People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L. R. A. (N. S.) 934, Ann. Cas. 1912B, 1148, in support of his contention that, by virtue of the change in the law, applicable to appellants’ right of action, the same has abated. The action of Moss v. Smith, supra, was brought against the directors of a corporation to recover under section 309 of the Civil Code, which makes participating directors liable for debts of the corporation created in excess of its subscribed capital stock. A demurrer to the complaint was sustained on the ground that, after the creation of said excessive indebtedness, section 309 of the Civil Code was amended in so far as it contained inhibitions against the creation by public utility corporations of indebtedness in excess of their authorized or subscribed capital stock, and providing that the provisions of said section should have no application to public utility corporations. The corporation of which the defendants were directors, and as such they were alleged to have created said excessive indebtedness, was a railroad corporation, and was therefore a public utility corporation. It was held that section 309 of the Civil Code ‘is highly punitive so far as the directors are concerned,’ and that the amendment of the Code section, making it inapplicable to public utility corporations, destroyed the right of action against the directors, as the repealing statute contained no saving clause. In People v. Bank of San Luis Obispo, supra, according to the syllabus, it was held that, ‘where a judgment rendered under the Banking Act of 1903, declaring a defendant bank insolvent and ordering it into involuntary liquidation, had been affirmed on direct appeal therefrom and thus become final, the subsequent repeal of such statute by the Banking Act of 1909, pending an appeal from an order refusing a new trial of the action in which the judgment was rendered, without supersedeas or staybond, does not have the effect to destroy the judgment, nor necessitate the dismissal of the action in which it was rendered.’ These cases we think can be readily differentiated from the present case. Moss v. Smith, supra, was an action to recover a penalty and was punitive in character. The present action is one to recover compensatory damages only. A much stricter construction is always given to statutes which have for their purpose the infliction of a penalty, than to those which merely give a right of action for injuries actually sustained. In People v. Bank of San Luis Obispo, supra, it was held that the repealing statute did not apply to the judgment involved therein. In each of these cases there is to be found language which by itself would tend to support respondent’s contention, but such language was not necessary to the decision in which it was rendered, and therefore cannot be held to possess any great authoritative value.
In the recent case of Krause v. Rarity (Cal.App.) 285 P. 879, the effect of the enactment of section 141 3/4 of the California Vehicle Act upon pending litigation was directly in issue, and it was there held that said statute was not retroactive and, therefore, had no bearing upon actions that were pending at the effective date of said section. We are in accord with the conclusion reached by the court in that cause.
For the reasons stated herein the judgment is reversed.
We concur: WASTE, C. J.; LANGDON, J.; SHENK, J.
I dissent: RICHARDS, J.
SEAWELL, J. (concurring).
I concur in the judgment upon the sole ground that there is evidence in the record to the effect that the driver of the automobile stopped, looked, and listened before he attempted to cross the railroad track under such existing circumstances that his going forward thereafter cannot be said to constitute contributory negligence as a matter of law.
PRESTON, J. (concurring).
I concur in the conclusion reached in this case. I concur also in the reasoning advanced to show that the testimony of defendant Ireland was not of that clear, positive, and unimpeachable character that as a matter of law dispelled the presumption that the deceased took ordinary care of his own concerns. Section 1963, subd. 4, Code Civ. Proc.
But I am unable to concur in so much of the opinion as restricts the source from which the testimony must arise which would dispel the presumption. In my view of the law it makes no difference whether the testimony arises from plaintiff’s own case or from an examination of the defendant under section 2055 of the Code of Civil Procedure or from defendant’s own showing. The question, and the sole question, is: Does the evidence meet the test as to strength and reliability sufficiently to overcome the presumption in question? The holding in the foregoing opinion seems to be that the evidence must arise either from admissions or the testimony of the parties relying upon the presumption. I see no reason for any such restriction of the rule.
For example, suppose the cause of action in favor of plaintiff depended upon the ineligible alienage of the defendant, and that he was compelled to and did rely solely upon the statutory presumption arising from the fact that defendant was a member of an ineligible race of people; yet if defendant upon examination under said section 2055, or as a part of his own case, showed to the court that he was born in the United States, or that he enlisted in the military forces of the country, thereby obtaining citizenship, and there was nothing to throw suspicion upon the authenticity of his birth certificate or his certificate of citizenship, could it be said that the presumption in favor of plaintiff had not been overcome? My view is that in such a case the presumption in favor of plaintiff would be entirely dispelled.
In fact, the case of Clendenning v. Parker, 69 Cal.App. 685, 231 P. 765, furnishes a concrete illustration of the position I am contending for. It appears that there Michael Haley and wife lived together as such in the city of Seattle from November 22, 1915, the date of their marriage, until the latter part of September, 1916, when Mrs. Haley went to Los Angeles. On the 9th day of October, 1916, and only a few days after she left Seattle, a marriage ceremony was performed between herself and the defendant Parker. The records of the courts of the county in which the city of Seattle was situated were examined and showed that no proceeding for a divorce or annulment of her marriage with Michael Haley had ever been instituted in said court. She had not lived in California sufficiently long to have acquired the right to institute an action for divorce. It was held, therefore, that the presumption of the legality of the marriage of Mrs. Haley with defendant Parker had been completely rebutted and overcome by the evidence that no decree of divorce had ever been granted as between Mrs. Haley and her husband Michael Haley. In that case the evidence was so clear and convincing that it amounted to practically a demonstration that the pretended marriage with defendant Parker was void, and it was therefore sufficient to dispel as a matter of law the presumption that such marriage was legal.
The above case, and perhaps other cases also, give clear proof of the wisdom of the rule which I here advocate.