CORTOPASSI ET AL v. CALIFORNIA WESTERN RAILROAD NAVIGATION CO ET AL

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District Court of Appeal, First District, Division 2, California.

CORTOPASSI ET AL. v. CALIFORNIA–WESTERN RAILROAD & NAVIGATION CO. ET AL.

Civ. 11823.

Decided: September 11, 1942

Hoge, Pelton & Gunther and A. Dal Thomson, all of San Francisco, for appellants. Renzo Turco, Philander B. Beadle, and Samuel Vartan, all of San Francisco, for respondents.

This is the second appeal in the above entitled action. See Cortopassi v. California–Western, etc., Co. et al., 39 Cal.App.2d 280, 102 P.2d 1093. After the remittitur in that case went down the cause was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiffs and from the judgment entered thereon the defendants have appealed. In addition to the facts stated in the former opinion other facts will be recited as we proceed.

The defendants contend that the deceased was guilty of contributory negligence as a matter of law. A consideration of the point requires a more complete statement of the facts. At Fort Bragg in Mendocino County, the Union Lumber Company operates a saw mill and other plants in the manufacture of products of wood. It has many subsidiaries, among others the defendant, California–Western Railroad and Navigation Company (hereinafter called the railroad company), which conducts the greater part of the transportation business for the Union Lumber Company but which is also engaged as a carrier for other persons and is generally engaged in interstate commerce.

The lumber mill of the Union Lumber Company is located close to the ocean shore on the west side of Fort Bragg. Among other appurtenances it has a planing mill in which Joseph Cortopassi, the decedent, was and had been for many years engaged as a planer. The railroad tracks of the defendant extended in a general northerly and southerly direction on a right of way that lies between the lumber mill and the city of Fort Bragg. A part of that right of way is known as the yard. On the east side of the yard is a round house. On the western side of the yard is a shed used as a garage for cars. Between those two buildings is a switch. One railroad track lies between the switch and the round house. Between the switch and the shed are three other tracks. All are practically parallel. The yard has a grade from the south toward the north. The record shows that the brakes being released a car will roll from the north down by the switch toward the south. For a distance of 170 feet from the switch toward the north there are no buildings or other fixed obstructions. A path exists extending from the northwest to the southeast across the tracks at about the north end of the switch.

The decedent, as stated above, was an employee of the Union Lumber Company. His work day was finished at 4 p. m. He was a man of sound health, good eyesight, and good hearing. At about 4:15 p. m. on the afternoon of September 12, 1936, the decedent was on the above mentioned path. He was seen at a point two or three steps west of the western rail of the eastern track. He was then proceeding in a southeasterly direction and had his head turned toward the south. At about that time W. L. King as motorman, and Tom Golden as conductor, were backing a motor coach from the north on the eastern track down toward the switch. The motorman was at his post operating the motor. The conductor was standing on a step on the eastern side of the north end of the motor coach giving signals to the motorman. At about the same time a train of flat cars was being propelled by a steam locomotive from the south toward the north on the western side of the yard. The steam locomotive had reached a point that was practically abreast of the point where the decedent was first seen, as recited above. Except as hereinabove recited, there was nothing to obscure the view of the decedent either to the north or to the south. The steam locomotive was being propelled at a speed of about 25 miles an hour. The motor coach was “coasting” from the north to the south at a speed of about two miles an hour. The bell on the locomotive was ringing continuously. The bell on the motor coach was ringing continuously. The latter bell, according to the testimony, could be heard for a half a mile.

Under the foregoing circumstances the decedent was knocked down and killed as the motor coach backed to the south. McDonald, an employee of the Union Lumber Company, was in the cab of the locomotive. He saw the decedent take two or three steps until he walked over the rail, turned to the south and was struck by the rear end of the motor coach. The witness Burnie was riding on a flat car immediately behind the steam locomotive. He had been making some repairs. He looked up and, as he stated, in a flash he saw the decedent traveling southerly with his face turned toward the witness. He was nearly on the western rail of the east track. He was facing the south. Here the witness indicated to the jury the position of decedent. The witness observed the front of the body of the decedent. He seemed to be walking. The witness was nearly due west of decedent at the time of the collision and was facing east. The witness Saunders was on the same flat car and looking at the motor coach. He first saw the decedent at a point which he estimated to be four feet eight inches from the track. The decedent was walking. He saw him take a step or two, turn his head to the south, when he was struck and knocked down. The decedent was walking toward the motor coach with his head down, but the witness did not see him look toward the motor coach which was then about ten feet away. The witness Emil Nieminen was riding on a flat car estimated to be 150 feet to the south of the place of the accident. He was looking directly at the decedent. He saw the decedent between the rails and testified, “I started to holler and yell all I could and motion him to get off the road.” He also testified that he saw the decedent and the motor coach at about the same time. The decedent at no time looked to the rear. Taking all of these facts into consideration it is clear that the question whether the decedent was guilty of contributory negligence is a close one. But, in view of the conclusion we have reached on the point next to be considered, we do not feel called upon to decide the first contention.

Acting upon the request of the plaintiffs, the court instructed the jury as follows: “You are instructed that the deceased, Joseph Cortopassi, as he crossed the track upon which he was killed, is presumed in the absence of credible evidence to the contrary, to have exercised ordinary care for his own safety. Under such circumstances, the decedent, Joseph Cortopassi had a right under the law to assume until the contrary appeared that he was not exposed to danger which could come to him only by and through the negligence of those operating the motor coach, and that if he acted upon such assumption he was not guilty of contributory negligence merely by reason of the fact that he did so.” The defendants contend it was error to give said instruction. The plaintiffs reply that the first sentence implies that the decedent was acting with due care. Continuing they assert that the remainder of the instruction was based on the first proposition. They conclude that therefore the instruction was properly given. Murphy v. St. Claire Brewing Co., 41 Cal.App.2d 535, 540, 107 P.2d 273. The vice in that reasoning is that the plaintiffs fail to appreciate that their claim is based on the claim that the decedent was hit by an instrumentality operated on a steam railroad track. The distinction is all important. A similar controversy arose in Hoffart v. Southern Pacific Co., 33 Cal.App.2d 591, 92 P.2d 436. On page 598 of 33 Cal.App.2d on page 440 of 92 P.2d, the court said: “The following instruction was given: ‘A person about to cross over such crossing cannot rely upon the assumption that the employees operating a train on the track will give the proper warning of approach by sounding the bell and blowing the whistle.’ Appellants contend that the foregoing instruction is erroneous, in that the rule applies only where the person about to cross the track is himself negligent, and they also predicate error upon the refusal of the court to give an instruction to the effect that one free from negligence, in approaching a railroad crossing, has a right to anticipate that the law requiring the ringing of a bell and the sounding of a whistle would be complied with. The instruction given correctly stated the law, and the proposed instruction was properly rejected. As stated in Hutson v. Southern California R. Co., 150 Cal. 701–703, 89 P. 1093, 1094: ‘It is not the law of this State that a person approaching a railroad crossing is authorized to assume that the persons operating a train will not in any way be negligent in that operation.’ ” (Petition for hearing in Supreme Court denied.) That the giving of said instruction was highly prejudicial in the instant case is patent from the following facts. It is hardly debatable that the defendant railway company was negligent in backing the motor coach in the manner described above. Its only defense therefore was the contributory negligence of the decedent. Referring to the effect of the instruction on assumption of the decedent it was said: “Such a rule would abrogate the doctrine of contributory negligence in all such cases * * *.” Hutson v. Southern California R. Co., 150 Cal. 701, 703, 89 P. 1093. See, also, Hamlin v. Pacific Electric R. Co., 150 Cal. 776, 784, 89 P. 1109; Larrabee v. Western Pacific R. Co., 173 Cal. 743, 748, 161 P. 750; Alloggi v. Southern Pacific Co., 37 Cal.App. 72, 78, 173 P. 1117. We conclude, therefore, that the giving of said instruction was reversible error.

The judgment appealed from is reversed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.