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Hofstedt v. Southern Pac. Co.

District Court of Appeals of California, Third District
Jun 17, 1931
1 P.2d 470 (Cal. Ct. App. 1931)


Rehearing Granted July 17, 1931.

Appeal from Superior Court, Merced County; C. W. Miller, Judge.

Action by James A. Hofstedt against the Southern Pacific Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed. COUNSEL

Devlin & Devlin & Diepenbrock, of Sacramento, for appellants.

F. M. Ostrander, of Merced, for respondent.



This is an appeal from a judgment for damages for personal injuries, which were sustained by the plaintiff when his automobile ran into a freight train which blocked the highway crossing, where the cars stood upon a sidetrack.

On the night of June 3, 1928, the defendant’s freight train, consisting of a long string of cars to which an engine was attached, was stationed on a spur track adjacent to the main line in the outskirts of Dos Palos, awaiting the passing of another train. It was about 3 o’clock a. m. The headlight of the engine was not burning. A crew of men was in charge of the train. It had been standing on this sidetrack for twenty minutes. During this time the crossing was entirely blocked, contrary to the provisions of a county ordinance. The train was not cut for the crossing. There were no street lamps in the immediate vicinity. No train employee or lanterns were stationed at the crossing to give warning of the blockade. The spur track described an are westerly as it left the main line and ran to a warehouse some distance away. The highway extended parallel with the main line of the railroad and crossed this spur track in the suburb of Dos Palos. The roadway had a graveled surface. The plaintiff was familiar with this crossing, having frequently traveled that way. He was employed by the Standard Oil Company near that station. Just prior to the accident, he was driving his automobile southerly along the highway parallel with the main line track, for the purpose of going to work. His headlamps were lighted. They had been inspected shortly before the time of the accident, and had been found to be in good condition. As he reached a point in the vicinity of the crossing, he was traveling about thirty-five miles an hour. He was not aware of the proximity of the crossing. Neither the headlight of the engine or other lights were displayed along the train. He failed to see the freight cars in the darkness.

When the plaintiff reached a point three hundred feet from the train which blocked the crossing, he passed another machine coming from the direction of the train. This machine was driven by Vernon Malm, and contained several other occupants. They had attempted to pass the crossing some time before the plaintiff arrived. They discovered the train before they reached the crossing. Their attention was attracted to it by the light from the headlamp of the engine shining upon the warehouse. Almost immediately after their arrival at the crossing this headlight was turned out, leaving the train in darkness. After waiting at the crossing for some time, they turned their machine about and retraced their course to find another crossing. When they reached a point about three hundred feet from the barricaded crossing they passed the plaintiff’s car going toward the train. They anticipated his ignorance of the presence of the train at the crossing and attempted to warn him, but he failed to hear them. After the plaintiff passed the glare of the headlamps of the passing machine he was within about sixty feet of the track before he first saw the box cars which blocked his course. He immediately applied his brakes with full force. On account of the graveled surface of the roadway and the rapid speed of his machine, he was unable to avoid a collision. In attempting to prevent a head-on collision he turned his machine up the track, but ran into the cars and sustained injuries thereby. Suit was brought against the railroad company. The case was tried by the court sitting without a jury. A judgment for damages was rendered against the defendant in the sum of $857.50. The appellant contends that the findings and judgment are not supported by the evidence; that the plaintiff was guilty of contributory negligence, and that the court erred in admitting evidence of the violation of a county ordinance prohibiting railroad trains from blocking a highway crossing for a period of time in excess of five minutes, without the ordinance having been specially pleaded in the complaint.

It is conceded the freight train completely blocked the crossing for a period of at least twenty minutes. This was in violation of a Merced county ordinance, which provided that it was unlawful for any railroad company to block any highway crossing in the county with passenger or freight cars for a period of time in excess of five minutes. The violation of this ordinance, therefore, constituted negligence per se on the part of the appellant. 19 Cal.Jur. 632, § 65; Houston B. & T. Ry. Co. v. Price (Tex.Civ.App.) 192 S.W. 359; Fife v. Chicago & A. R. Co., 174 Mo.App. 655, 161 S.W. 300; Jarrell v. New Orleans & N.E. Ry. Co., 109 Miss. 49, 67 So. 659.

The appellant contends that the court erred in permitting proof of the existence and violation of this county ordinance, for the reason that it was not specially pleaded in the complaint. We think not. Upon application therefor, the respondent was permitted, over the objection of the appellant, to file a duly authenticated copy of the ordinance, upon the hearing of the cause in the District Court of Appeal. The right to file this ordinance as evidence in the District Court of Appeal is discretionary and is authorized "in the interest of justice" by the provisions of section 956a of the Code of Civil Procedure. It was not error to permit evidence of negligence in blocking a public highway with a freight train in violation of a county ordinance, without first specially pleading the ordinance. Cragg v. Los Angeles Trust Co., 154 Cal. 663, 669, 98 P. 1063, 1066, 16 Ann. Cas. 1061; Opitz v. Schenck, 178 Cal. 636, 174 P. 40; Andreen v. Escondido Citrus Union, 93 Cal.App. 182, 187, 269 P. 556; 2 McQuillin’s Municipal Corporations (2d Ed.) 992, sec. 898; 16 Ann. Cas. note, page 1064. In the Cragg Case, above cited, it is said: "The cause of action here alleged was not [founded upon] a violation of the ordinance, but [upon] the negligence of the defendant, and the ordinance was simply evidence offered to show such negligence. Under our system of pleading, it is both unnecessary and improper to plead the evidence relied on to establish the ultimate facts essential to a cause of action."

The negligent blocking of the crossing was alleged in the complaint in general terms, as follows: "Said train was being operated carelessly and negligently, in that it was stopped and was blocking the public highway. * * *" Proof of the fact that this obstruction of the highway was prohibited by a county ordinance is mere evidence of the negligence charged. It is true that the complaint also charged another separate element of negligence by adding to the preceding allegation the following language, to wit: "And was without lights or warning of any sort or nature to advise travelers upon said highway at said switch crossing that said train was so stopped and blocking said crossing." This latter paragraph in nowise changes the application of the foregoing rule, with respect to pleading an ordinance when it is relied upon as mere evidence of negligence. The complaint alleges two distinct acts of negligence. The first consists of blocking the crossing by means of freight cars. The violation of an existing ordinance is proof of this alleged negligence. The other specific charge of negligence was the failure of the defendant to warn travelers along the highway of the presence of the train by means of lights or otherwise. A general demurrer to the complaint only, was filed. There was no error in admitting evidence of the violation of the ordinance under the circumstances of this case, without requiring the ordinance to have been specially pleaded.

The question of the plaintiff’s contributory negligence was a problem for the determination of the trial judge, under the circumstances of this case. We are of the opinion there is ample evidence to support the findings of the court that, "plaintiff was exercising due care and caution and was not guilty of contributory negligence." The plaintiff was not running his automobile at an excessive rate of speed. His headlights were in good condition. He knew this spur track was seldom used. He had no reason to anticipate that it would be used on this occasion for the stationing of a freight train. Much less could he have anticipated it would be used as a sidetrack for a long freight train so as to completely block the crossing of the highway for a period of twenty minutes or more. This spur track was used on this occasion only because the regular sidetrack was thought to be too short for the long string of cars. It was dark. The headlight of the engine was extinguished so that the train was left in utter darkness. No lantern was displayed as a warning along the train or at the crossing. The plaintiff had just met and passed another automobile three hundred feet from the crossing, coming from the direction of the train. This approaching machine would naturally lead one to conclude that the crossing was open. A reasonable person would not assume this passing machine had run unscathed through a solid barricade of box cars. The plaintiff’s headlights were necessarily adjusted to conform to the requirements of the California Vehicle Act so as to throw the rays of light down upon the surface of the highway. At a distance, the rays of light from his lamps would strike the highway beneath the box cars which stand some three feet above the surface of the track. The box cars would not be disclosed by legally adjusted headlights until the machine was reasonably close to the track.

It is true that the plaintiff admitted that "I did not remember that there was a railroad there; I had forgotten about the spur track at that time." It seems only fair to assume, in support of the judgment, that he meant he did not realize that he was then in the immediate vicinity of the crossing. It may not be reasonably said that one, at his peril, must recall and correctly register in his mind the relative locations of every physical object along a highway. Common knowledge teaches us that physical objects and visible landmarks are located in the minds of men with relation to other objects. Without the aid of other recognized landmarks, it is exceedingly difficult to accurately catalogue and locate, in the darkness, well-known objects along the highway. In the darkness, one may recall that a certain crossing or object exists, but he may be greatly deceived as to its exact locality. It is therefore not strange that the plaintiff failed to realize that he was in close proximity to this particular crossing. Moreover, it was a mere service track leading to a warehouse belonging to the Standard Oil Company. It was seldom used for any purpose. The plaintiff’s mind would naturally not be impressed with the same degree of danger at this particular crossing which he should recognize with respect to a crossing over a main traveled railway track.

It is true that a visible railroad track is itself a warning of danger. But it is equally true that a railroad track which is invisible on account of darkness or because it is otherwise concealed from view, is not a warning of danger, unless one knows just where to look for it. It is only when one observes, or by the exercise of reasonable care should have observed, a railroad track, or when one knows that it is in a particular place and identifies the locality, that it becomes a warning of danger. Under the circumstances of this case, it may well be said in the language of the court in the case of Gregoriev v. N.W. P. R. R. Co., 95 Cal.App. 428, 433, 273 P. 76, 78: "Considering all of the circumstances attending the accident, especially those relating to the physical conditions present at the scene thereof, that respondent’s failure to observe the railroad track was not due to a lack of exercise of ordinary care on his part."

In that case the driver of an automobile suddenly came upon a railroad track which ran through an orchard and was partially concealed thereby. Under the circumstances of the present case it seems reasonable to believe the plaintiff was deceived by the utter darkness in which the stationary train was enveloped; by the passing of the Malm automobile within three hundred feet of the train, which indicated an open crossing, and by the fact that the rays of his headlights which were adjusted, as required by law, did not disclose the box cars until his machine was within sixty feet of them. At least, it appears that the facts of this case would justify reasonable minds in differing as to whether the plaintiff acted with due caution in approaching this service track under the circumstances. It is appropriately said in the case of Philadelphia & Reading Ry. Co. v. Dillon, 1 W. W. Harr. (Del.) 247, 114 A. 62, 64, 15 A. L. R. 894: "A traveler on a highway by day or night may expect that it will not be obstructed unlawfully or in such manner as to cause him injury while he himself is in the exercise of due and reasonable care, and what is such care depends on the circumstances of each case."

We are persuaded the record will not warrant this court in holding that the plaintiff was guilty of contributory negligence as a matter of law.

In support of its contention that the plaintiff was guilty of contributory negligence which bars him from a recovery of damages in this case, several cases are cited, in each of which specific acts or omissions on the part of the injured parties are recited as a basis for holding that they were guilty of contributory negligence. In each of these cases, the conclusions of the courts are based upon facts which do not exist in the present record. In the case of Orton v. Penn. Ry. Co. (C. C. A.) 7 F.2d 36, 37, in holding the plaintiff guilty of contributory negligence the court said: "The headlights on his automobile were burning brightly, and it must be presumed that they complied with the statute and were of sufficient strength to disclose the cars across the track at a distance of 200 feet from them."

In that case there was evidence that headlights similar to those on the plaintiff’s automobile, under the same circumstances which existed at the time of the accident, would actually disclose the freight cars at the crossing one hundred and sixty-five feet away. There is no such evidence in the present case. There would be no excuse for not stopping an automobile within a distance of one hundred and sixty-five feet. Nor does the California statute require headlights on an automobile which will disclose objects on the highway two hundred feet distant. The appellant is mistaken when it assumes that our California Vehicle Act requires any such test. Nowhere in our California Vehicle Act is it provided that headlights are required which will disclose objects on the highway at any specified distance. The language of section 99 of the California Vehicle Act (St. 1923, p. 546), is misconstrued by the appellant. It merely provides, in effect, that when it is so dark that an object cannot be seen on the highway at a distance of two hundred feet, then automobiles must turn on their headlights. This section reads in part: "* * * During the period from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible a person, vehicle or other substantial object on the highway at a distance of two hundred feet ahead [a vehicle], shall be equipped with lighted lamps and lighted headlights as herein respectively provided. * * *"

In Yano v. Scott Briquet Co., 184 Wis. 492, 199 N.W. 48, in which the plaintiff was held to be guilty of contributory negligence, he was running his automobile contrary to the requirements of the law, with headlights so dim he could not see a distance of more than twenty feet ahead of his machine.

In the case of Allison v. Chicago, M. & St. Paul Ry. Co., 83 Wash. 591, 145 P. 608, the plaintiff was running his machine only fifteen miles an hour, and could have stopped it within a distance of a very few feet. The evidence there showed that his headlights would actually disclose the obstructing cars at a distance of one hundred feet.

In the case of Farmer v. New York, N.H. etc., Co., 217 Mass. 158, 104 N.E. 492, the plaintiff recklessly drove his machine on a stormy night with the curtains down and the windshield up, without slackening his speed, directly into the car which barred his way. Each of these cases relied upon by the appellant as authority for the assertion that the plaintiff in the present case was guilty of contributory negligence as a matter of law, may be easily distinguished from the case at bar. Each case must be determined upon its particular facts.

Finally, it is asserted the defendant railroad company is not guilty of negligence which proximately caused the accident. We have held that the violation of the Merced county ordinance, with respect to the blocking of highway crossings, constitutes negligence per se. It is true that all negligence is not actionable. In the present case the blocking of the crossing must not amount to negligence only, but it must have also been the proximate cause of the accident, to render the defendant liable for the damages which resulted therefrom. We have held that the evidence is ample to support the finding that the plaintiff was not guilty of contributory negligence. Assuming that the plaintiff was not guilty of contributory negligence, it then necessarily follows that the cause of the accident was the unlawful blocking of a crossing. Knowing that this highway was used by vehicles, the defendant should have anticipated that a machine might attempt to pass the crossing at any moment. It appears to have been an unreasonable use of the spur track to block the crossing for a period of more than twenty minutes, extinguish the headlight of the engine, and leave the train in utter darkness with nothing to warn the drivers of passing vehicles of the presence of the train. It would have been a reasonable precaution for the train crew to have cut the string of cars so as to open the crossing for vehicles. The extinguishing of the headlight on the engine was an act which aggravated the negligence of the defendant.

It is contended that the blocking of the crossing for more than five minutes, which is prohibited by the Merced ordinance, is unimportant. Aside from the fact that the defendant is charged with negligence as a matter of law for violating this ordinance, the continuation of the blocking of the crossing caused the driver of the Malm machine to return. This misled the plaintiff into believing that the highway was open. The headlight was evidently turned out soon after the train was run upon the sidetrack, for Malm arrived before it was extinguished. He waited at the crossing fifteen minutes before he turned back to find another crossing. The blocking of the crossing for a considerable length of time, therefore, did contribute to the cause of the accident.

It is contended that the blocking of the crossing for an unlawful period of time created a mere condition, and was not the proximate cause of the accident. In support of this assertion, the appellant relies on the cases of Orton v. Penn. Ry. Co. (C. C. A.) 7 F.2d 36, and Gilman v. Central Vt. Ry. Co., 93 Vt. 340, 107 A. 122, 16 A. L. R. 1102. The determination as to whether the violation of a statute or ordinance prohibiting the blocking of a crossing creates a mere condition, and that it is not the proximate cause of the accident, depends upon the circumstances of the particular case. Where there are conflicting facts regarding the question as to whether the negligence of the railroad company in blocking the crossing became the proximate cause of the accident, it becomes a problem for the decision of the trial court or the jury, and a determination that it was the proximate cause of accident will not be disturbed on appeal.

In the case of Gilman v. Central Vt. Ry. Co., which is relied upon by the appellant, there was a steep, slippery grade which had been recently oiled, descending to the blockaded track. This dangerous condition of the street caused the plaintiff to lose control of his automobile. He was unable to stop his machine, and therefore ran into the freight car at the crossing. The railroad company was not to blame for the slippery condition of the street, nor for the apparent defective condition of the plaintiff’s brakes. The proximate cause of the accident in that case was the condition of the street, and not the blocking of the crossing. The violation of a statute prohibiting a train from blocking a crossing for a period of time in excess of five minutes, under such circumstances, was not involved in that case. The accident would have occurred regardless of the length of time the crossing was blocked.

In the case of Orton v. Penn. Ry. Co., supra, relied upon by the appellant, the cause was reversed on the ground that the plaintiff was guilty of contributory negligence. In that case it appears that the plaintiff’s headlights actually disclosed the presence of the freight cars at a distance of one hundred and sixty-five feet from the crossing. The statute required automobiles to be supplied with headlamps which would disclose objects on the highway at a distance of two hundred feet. There appears no reasonable excuse in that case for the plaintiff’s failure to see the freight cars in time to have avoided the accident.

The other railroad crossing cases, cited by the appellant as authority for the assertion that it was not guilty of negligence which proximately caused the accident, are similarly distinguishable from the case at bar.

The judgment is affirmed.

We concur: PRESTON, P. J.; PLUMMER, J.

Summaries of

Hofstedt v. Southern Pac. Co.

District Court of Appeals of California, Third District
Jun 17, 1931
1 P.2d 470 (Cal. Ct. App. 1931)
Case details for

Hofstedt v. Southern Pac. Co.

Case Details


Court:District Court of Appeals of California, Third District

Date published: Jun 17, 1931


1 P.2d 470 (Cal. Ct. App. 1931)

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