Opinion
Rehearing Granted July 25, 1929.
In Bank.
Action by Dorothy M. Young and others against the Pacific Electric Railway Company and another. Judgment for defendant entered on directed verdict and motion of plaintiff for new trial denied, and plaintiffs appeal.
Reversed and remanded for new trial.
Curtis and Shenk, JJ., dissenting.
Appeal from Superior Court, Los Angeles County; Edwin F. Hahn, Judge.
COUNSEL
Ben. F. Griffith and Ralph W. Eckhart, both of Los Angeles, for appellants.
Frank Karr, E. E. Morris, and C. W. Cornell, all of Los Angeles, for respondents.
OPINION
WASTE, C. J.
Plaintiffs, as the heirs of Peter W. Young, brought this action to recover damages for his death, resulting from a collision at a crossing between an automobile truck, driven by him, and an electric car of the defendant Pacific Electric Railway Company, operated by the defendant motorman, Howard T. Bennett. Negligence of the defendants was charged in three particulars: In failing to give a proper crossing signal; operating the car at an excessive speed; and in failing to operate the car with due care in view of the dangerous and unguarded condition of the crossing. The case was tried with a jury. When all the evidence was in, defendants moved for a directed verdict in their favor on the following grounds: (1) That the evidence showed conclusively that there was no negligence on the part of the railway company which contributed, directly or proximately, to the happening of the accident; (2) that the evidence conclusively showed that the deceased was himself guilty of contributory negligence; and (3) that if, under the evidence, the jury returned a verdict in favor of the plaintiffs, the court would have to set it aside because of the insufficiency of the evidence to support it. The court granted the motion without indicating upon what grounds it did so. Plaintiffs’ motion for a new trial was denied, and they have appealed from the judgment entered on the directed verdict.
The trial court erred in taking the case from the jury, unless it can be said, as a matter of law, that no other reasonable conclusion, than that defendants were entitled to judgment, was legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that an appellate court would be impelled to reverse it upon appeal, or a trial court to set it aside. Umsted v. Scofield Engineering Const. Co. (Cal. Sup.) 263 P. 799; Duggan v. Forderer, 79 Cal.App. 339, 343, 249 P. 533. It becomes necessary, therefore, to determine whether the evidence in the case tended to establish the negligence charged by the plaintiffs to the defendants, or whether the testimony, as a whole, so conclusively supported one or more of the grounds of defendants’ motion for a directed verdict that the court would have been under compulsion to set aside a contrary finding of the jury.
The collision which occasioned Young’s death occurred on December 22, 1925, in the city of Hawthorne, where Eucalyptus avenue intersects at right angles the main line track of the Pacific Electric Railway Company, running east and west. Evidence as to the condition of the crossing showed that a warehouse was located on the northwest corner. North of the warehouse, on Eucalyptus avenue, was a garage, with a house adjoining on the north. These buildings obstructed the view of persons driving in a southerly direction along Eucalyptus avenue to such an extent that they had no opportunity to observe an eastbound electric car until they were almost on, or dangerously close to, the tracks. The obstructions likewise prevented the trainmen on cars approaching the crossing from the west from seeing automobiles southbound toward the tracks. In addition to the buildings, box cars stood on the siding west of Eucalyptus avenue and north of the main track practically all the time. A power line pole west of the avenue and between the two tracks also obstructed the view from a certain angle. There was the usual standard railroad crossing sign, but no automatic signaling device nor gates, nor was a flagman stationed at the intersection to warn travelers of approaching cars. One of plaintiffs’ witnesses testified that on several occasions he had discussed with the agent of the Pacific Electric Railway Company at El Segundo the dangerous nature of the crossing, and had suggested that a wigwag be installed. While the respondents assert that an examination of their exhibits will show the locality to be ‘a sparsely settled rural community with the standard cross arm plainly visible,’ nevertheless, the crossing is a well-traveled one within the city limits of Hawthorne; a witness testifying that he ‘would estimate, including [his] customers and others driving touring cars, inclusive of [his] own trucks, about two hundred people’ daily crossed the tracks at Eucalyptus avenue.
Plaintiffs’ first assignment of negligence on the part of the defendants concerns the alleged failure of the motorman to blow the whistle sufficiently in advance of reaching the crossing to give proper warning. There was a substantial conflict in the testimony as to the time of giving the signals, and as to their extent. The fact that there was positive testimony on the subject does not conclusively establish that the required crossing signals were given. It creates merely a conflict of testimony to be resolved by the jury. Thompson v. Los Angeles, etc., R. Co., 165 Cal. 748, 752, 134 P. 709; Vaca v. Southern P. Co. (Cal.App.) 267 P. 346. See, also, Marchetti v. Southern P. Co. (Cal. Sup.) 269 P. 529.
With reference to the alleged excessive speed of the car, respondents contend that, in the absence of a regulatory statute or ordinance, a railway company may ordinarily run its trains at such speed as it sees fit, and that a charge of negligence cannot be predicated on that rate of speed unless there are attendant circumstances which make such speed negligence. They also cite authorities as to the right of a railroad company to operate its trains at a high rate of speed in country districts. While it is true that no rate of speed is negligence per se in the absence of a statute or ordinance, it does not follow that a railroad company will be permitted to run its trains under all conditions at any rate of speed it may choose. It must regulate its speed with proper regard for the safety of human life and property, especially when running through towns and cities. The character of a crossing, it has been well reasoned, affects the duty of the railroad company toward travelers upon the public highway, and its trains must pass over dangerous crossings at a less rate of speed proportionate to the danger. As previously stated, the scene of the collision was not the ordinary country grade crossing, but a well-traveled, paved avenue within the city limits. It was stipulated that the distance between Hawthorne and El Segundo, the termini of the portion of the electric line involved in this case, was 4.56 miles. Estimates as to the speed of the car varied from 12 to 20 miles an hour, and there was some evidence that the train was coasting. While the defendant motorman testified that his car was traveling at about 15 miles an hour as he approached the intersection, he further stated that the running time between the two termini mentioned, with seven scheduled stops, was eleven minutes. A brief computation will demonstrate that the car would have to average a trifle less than 25 miles an hour in order to keep within the allotted running time, without making any allowance for the slackening of the car before stopping, and without any deduction for the time actually lost in taking on passengers. Eucalyptus avenue was not one of the scheduled stops, and it would be only reasonable for the jury to infer that, in order to keep within the scheduled running time, the train would travel faster where there were no regular stations than it would when nearing one where it was required to stop. ‘A rate of speed that may be allowable in a thinly settled part of the country, where but few persons will have occasion to cross the tracks, may be so dangerous as to constitute negligence on the part of the railroad company when driving a train through a city or village, where many persons are likely to cross the track.’ 2 Thompson on Negligence, § 1875. As the standard of duty shifts with the circumstances developed in the case, the question whether or not a rate of speed is excessive is one of fact for the jury. As this court said in Bilton v. Southern P. Co., 148 Cal. 443, 447, 83 P. 440, 442: ‘* * * There can be no doubt that the question as to whether or not a rate of speed at a crossing is so dangerous or excessive as to constitute negligence must depend upon the particular circumstances there existing, and if the circumstances are such that reasonable and impartial men may well differ as to whether the speed maintained at the particular place showed a want of reasonable care, the question as to whether the railroad company was guilty of negligence in maintaining such speed is one for the jury’— — citing authorities. See, also, Marchetti v. Southern P. Co., supra, at page 531 of 269 P.; Tousley v. P. Elec. Ry. Co., 166 Cal. 457, 460, 137 P. 31.
The third charge of negligence against the defendants relates to the failure to operate the car with due care in view of the dangerous condition of the crossing. A witness testified that there was practically a solid wall of obstruction commencing with the house north of the garage and continuing up to within 19 feet, 6 or 8 inches of the track, and that there was no opportunity at all, until one passed the latter point, to see a car coming from the west. According to the testimony of the motorman, ‘a box car was located on the siding just north of the track that [he] was operating on, approximately 40 feet west of Eucalyptus street.’ He first saw the truck as he came out from behind the box car, and about 35 feet from the crossing. There was also testimony showing that if a box car was stopped in a position to load on the platform on the south side of the Sanderson warehouse, an automobile would have to be beyond the siding tracks to see a train coming from the west. A witness was asked whether, under those conditions, in an automobile in which the driver’s point of vision was 7 feet back of the front of his car (as was the case with the autotruck involved in this collision), the driver could see a train approaching from the west— west of the telephone pole— without putting himself ‘in a position of peril.’ ‘The Court: What do you mean by ‘a position of peril’?’ Counsel for plaintiffs: ‘By ‘a position of peril’ I mean a position where you would be so far on the track that if a car came down there it would strike the automobile in which you were.’ The witness: ‘It would not strike me, but it would strike the automobile, for the reason that I would have to have at least my radiator and the center of my front wheels on the track.’ In Bilton v. Southern P. Co., supra, this court said (page 447 of 148 Cal. [83 P. 442]): ‘The obligation rested upon it [the railroad company] of taking such care to prevent injury by its trains to those passing over the crossing as would, under the existing circumstances, be reasonable, and if the view of its track was so obstructed that a person lawfully using the street could not before passing from a place of safety to a place of danger see an approaching train just beyond the obstruction in time to escape it, if it moved at a high rate of speed, it was its duty to moderate the speed accordingly, or make the approach of the train reasonably apparent by other methods to the user of the street.’
Marchetti v. Southern Pacific Co., supra, was an action for damages for death caused by a collision. The court granted defendants’ motion for a nonsuit based on the contributory negligence of the deceased. There, as here, the evidence showed the crossing to be dangerous because of existing obstructions, and there was a conflict as to the sounding of proper warnings. On appeal, the respondents contended that, even though it should be held there was error on the part of the trial court in granting their motion on the ground of contributory negligence, the order should be sustained because there was no evidence of negligence on their part in the operation of their train at the time of the collision. In passing upon this contention, this court said: ‘It was held in Green v. Southern Pacific Co., 53 Cal.App. 194, 202, 199 P. 1059, 1062: That the law imposed ‘upon a railroad company the duty to use reasonable care, corresponding to the circumstances constituting the probable danger, to avoid injury to persons lawfully traveling upon the public highway crossed by the company’s tracks and trains. It then becomes a question for the jury to decide whether or not it was negligence for the company to run its cars across the highway without providing a flagman or some means of warning to travelers at the place of crossing. And, where the facts in evidence prove that usually or frequently there are obstructions which interfere with the opportunity to see moving trains while travelers on the highway are approaching a much-traveled crossing, it cannot be held that as a matter of law it is not negligence to run trains there without warning signals other than those usually given by engines and cars.’’
Respondents contend that the deceased, in failing to stop, look, and listen, was guilty of negligence which contributed directly and proximately to the happening of the accident; but the question of such negligence is not usually one of law for the court, but is one of fact for the jury. ‘The law can only define the duty of individuals under given circumstances. The existence of the circumstances is a question of fact for the jury.’ Dufour v. Central P. R. R. Co., 67 Cal. 319, 323, 7 P. 769, 771. Reviewing the evidence with reference to the conduct of the deceased, it appears that the territory covered by him in his business of selling and distributing bottled water, in which he had engaged for several months, was on both sides of the railroad track, and included Eucalyptus avenue. We may assume, therefore, that he was familiar with the crossing. The statement of one of defendants’ witnesses that he had had a conversation with the deceased some six or eight weeks prior to the accident, in which he had warned him about his careless manner in crossing the tracks, and his testimony as to the rate of speed at which the deceased customarily crossed the tracks, were impeached by the testimony of other witnesses. Estimates as to the speed of the automobile truck prior to the collision varied from between 12 and 15 miles to between 20 and 30 miles. Mrs. Leek, a witness for the plaintiffs, testified that she first saw the deceased as she looked through a window about 45 feet from the point where the accident occurred. At that time the truck was going at from 12 to 15 miles an hour, and, as he approached the crossing, the driver ‘possibly slowed down a bit’; that as the truck passed the window he was ‘looking down a little bit’; that his left hand was on the steering wheel, but she was not sure as to his right hand. The section foreman for the railway company testified that at the time he was about 150 feet from the crossing that he noticed the autotruck approaching, and Young was looking down and driving with one hand; that when the deceased was within 30 or 40 feet of the crossing the witness shouted at him, whereupon he looked up, ‘got ahold of his wheel and steering his car— turned the car the same way the Pacific Electric car was running.’
Appellants contend that the jury may have inferred from the testimony of these two witnesses that the deceased had slowed down his truck, preparatory to stopping as soon as he would be in a position to look up the main track. It will be recalled that in order to do so he would have to run his machine to within a few feet of the track. Appellants urge, further, that the jury may have concluded from the testimony just referred to that the deceased looked down to put one hand on the emergency brake, to set it when he stopped, when his attention was suddenly distracted and misdirected to the east by the loud shouting of the section foreman, ‘so powerfully’ that it could be ‘heard about two blocks’; that during this ‘second of distraction’ the truck traveled forward the few feet which represented the difference between safety and danger; and that by the time the driver looked to the west and saw the oncoming car he believed he could not stop before reaching the tracks, and, releasing the partial brake he had on the truck, he swung to the left, paralleling the electric car, in an effort to avoid a collision. The machine had not reached the rails, but some portion of the overhang of the electric car and the forward part of the chassis of the truck came together. The automobile was not overturned, but the driver was killed when thrown beneath its wheels by the force of the impact. Passengers on the car, as well as the motorman, gave evidence which conflicted with that of plaintiffs’ witnesses as to the speed of the truck and with reference to the conduct of the deceased on approaching the crossing. In our opinion, it was for the jury to sift the testimony, in the light of the surroundings and the ability of the witnesses to see what occurred, and to determine which of the conflicting witnesses told the truth, and then, having ascertained the facts, it was for them to say, under proper instructions as to the law, whether the conduct of the deceased was free from negligence and accompanied with ordinary care. Cooper v. Los Angeles Terminal R. Co., 137 Cal. 229, 230, 70 P. 11. The right of a defendant to have a jury instructed to return a verdict in its favor can only obtain where the evidence conclusively establishes such negligence. ‘When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plaintiff a recovery.’ Zibbell v. Southern P. Co., 160 Cal. 237, 240, 116 P. 513, 515; Vaca v. Southern P. Co., supra, page 349 of 267 P. Even where the facts are undisputed, if reasonable men might draw different conclusions upon the question of negligence, the question is one of fact for the jury. Johnson v. Southern P. R. R. Co., 154 Cal. 285, 295, 97 P. 520, citing Seller v. Market-Street Ry. Co., 139 Cal. 268, 72 P. 1006.
Considering the evidence in this case as a whole, we do not think it can be fairly held, as a matter of law, either that the respondents were not guilty of negligence in the operation of their train, or that the deceased was contributorily negligent. The testimony was not so clear and convincing that the court could undertake to say, as a matter of law, how the jury should find on those issues. Davis v. Pacific Power Co., 107 Cal. 563, 575, 40 P. 952, 48 Am. St. Rep. 156. Appellants were therefore entitled to have the case go to the jury for a verdict on the merits.
The judgment is reversed, and the cause is remanded for a new trial.
We concur: PRESTON, J.; RICHARDS, J.; SEAWELL, J.; LANGDON, J.
CURTIS, J. I dissent.
The uncontradicted evidence in this case in my opinion shows that the deceased was guilty of contributory negligence in driving his truck upon the tracks of the defendant railway company. Contributory negligence becomes a question of law when the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from these facts reasonable men can draw but one inference, namely, an inference pointing unerringly to or against contributory negligence upon the part of the plaintiff. 19 Cal.Jur. 735; Reaugh v. Cudahy Packing Co., 189 Cal. 335, 208 P. 125; Young v. Southern Pacific Co., 182 Cal. 369, 190 P. 36; Griffin v. San Pedro, L. A. & S. L. R. R. Co., 170 Cal. 772, 151 P. 282, L. R. A. 1916A, 842.
The uncontradicted evidence in this case shows that the deceased deliberately drove his truck upon the railroad track without making any attempt whatever to ascertain whether there was a train approaching thereon. The fact that his view of the track was obscured by buildings or other objects situated on or along the railway right of way did not relieve him of the duty of ascertaining that the railway track was free of danger before he entered thereon. Griffin v. San Pedro, L. A. & S. L. R. R. Co., supra. In that case the facts were much like those in the present action, and it was therein held by this court that the uncontradicted evidence showed that the plaintiff was as a matter of law guilty of contributory negligence. The rule enunciated in that case has been uniformly followed by this court. Murray v. Southern Pacific Co., 177 Cal. 1, 169 P. 675; Billig v. Southern P. Co., 192 Cal. 357, 219 P. 992; Parker v. Southern Pacific Co. (Cal. Sup.) 269 P. 622; California Rendering Co. v. Pacific Electric Ry. Co. (Cal. Sup.) 269 P. 922.
I concur: SHENK, J.