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District Court of Appeal, Second District, Division 1, California.


Civ. 13510.

Decided: August 14, 1942

Lyndol L. Young and Forrest F. Murray, both of Los Angeles, for appellant. Paul Blackwood and Samuel P. Young, both of Los Angeles, for respondents.

In this action for damages for personal injuries, the jury returned a verdict for plaintiffs. Defendant appeals from the judgment and from the order denying defendant's motion in the alternative form for judgment notwithstanding the verdict.

Briefly the facts are as follows: Plaintiffs were guests in an automobile which collided with the fourth car of defendant's freight train of thirty–two cars which was crossing the highway. The accident occurred at night during a heavy fog. The train was traveling about four miles per hour; the automobile, according to plaintiffs' witnesses, about fifteen miles. Visibility was poor.

It is appellant's contention, “that the presence of the train, the engine and three and one–half cars of which had already entered and passed over Atlantic Boulevard, was only a remote condition of the accident and not a proximate cause thereof, and that the sole proximate cause of the plaintiffs' injuries was the negligent act of Mr. Guida, the driver of the automobile, in attempting to drive his automobile upon a railroad crossing which at the same time was being occupied by a passing train. * * *” It is argued, therefore, that the evidence fails to show any actionable negligence on the part of defendant, hence the action of the trial court was error.

It is respondents' contention, on the contrary, that there was “ample and sufficient evidence of defendant's negligence to support the verdicts in the following particulars:

“(1) No bell or whistle of the train was sounded as it approached or was crossing the arterial highway.

“(2) Neither the bell nor the light of the wigwag at the crossing was operating as the train approached and crossed said place.

“(3) Visibility being limited to 5 feet to 15 feet for dark objects, but 35 feet to 50 feet for lighted objects, at the time the dark, unlighted, long train of cars was slowly and silently crossing the dark main highway, the failure to put out a lighted lamp or flare on the road was negligent was a question for the jury, especially where there was a crew of five men on the train, four of whom at all times mentioned were, and remained, on the locomotive, although only two men were needed there, and the fifth man was on top of the last car with a lamp in his hand; and, moreover, the jury had the right to believe that the wigwag was not working and that the crew on the engine knew and saw it was not operating, as they began and were crossing the highway.” (Italics included.)

With regard to the evidence in support of respondents' contention it is pointed out, quoting from their brief, that “Viewing the evidence in the light most favorable to respondents, the record shows:

“Neither the bell nor whistle of the locomotive was sounded as it approached the crossing, or as it was crossing the highway. The wigwag signal was neither ringing nor lighted at any time during the approach of or crossing of the train. The automobile in which plaintiffs were riding approached the crossing at approximately 10 to 15 miles per hour, the driver bending over the wheel, looking out of the window for objects ahead of him. The visibility of dark objects ahead was from 5 to 10 feet, and of lighted objects from 35 to 50 feet. Plaintiffs and the driver of the automobile were familiar with the crossing and knew that a wigwag signal was maintained at the crossing and would begin ringing and become lighted when a train was at least several hundred feet from, and approaching, the highway, and continue to so operate while the train was crossing the highway, and they were looking for this light and listening for the bell as they approached this crossing, but the light was not lit and the bell was not ringing. When the automobile was about 15 feet from the tracks, upon which the box cars were traveling, the driver saw a side of a box car ahead of him and immediately swerved his automobile to his right and applied his brakes, but could not stop his automobile in time to avoid colliding with one of the box cars. * * *”

Respondents rely in particular on Harper v. Northwestern Pac. R. Co., 34 Cal.App.2d 451, 93 P.2d 821, and Mallett v. Southern Pac. Co., 20 Cal.App.2d 500, 68 P.2d 281, and from them, as well as others, argues that, “It follows from the foregoing authorities that if the wigwag signal was not working (and the jury must be presumed to have accepted plaintiffs' testimony to this effect) then it was the duty of the defendant to give some other adequate warning signal of the approach of the train, and its failure to perform this duty was the proximate cause of the accident.” (Italics added.)

Referring to respondents' recital of the evidence, as quoted, appellant comments as follows: “Under the heading ‘Review of the Testimony’ respondents set forth their incorrect version of the evidence and cite certain references to the reporter's transcript in support thereof. Both are misleading and incorrect. The statement that neither the bell nor the whistle of the locomotive were sounded as it approached the crossing and the further statement that the wigwag signal was neither lighted nor ringing at any time during the approach of or the crossing of the train, is directly contrary to the substantial and preponderating evidence. * * *”

The fact is that, with regard to the question as to whether the “wigwag” was operating, or the bell and whistle of the locomotive were sounded, the record reveals the evidence to be conflicting.

Notwithstanding repeated reference in the briefs to the asserted omissions of defendant company with regard to its duty as the train approached the crossing, a consideration of that subject is of no help in determining the question herein presented. That question, and it is the sole question, may be summed up in a few words, viz: Is there any evidence to sustain the implied finding of the jury that the defendant company was negligent in the operation of the train at the time the accident occurred, and if so, was such negligence the proximate cause of the alleged damage?

Manifestly, since the accident occurred after a part of the train had passed and while the remainder was crossing the highway, what occurred before is beside the issue. The duties and responsibilities of defendant company are entirely different under two such different situations.

The facts in the case at bar are somewhat similar to the facts in Dunlap v. Pacific Electric Ry. Co., 12 Cal.App.2d 473, 476, 55 P.2d 894, 895. There the court declared as follows:

“Appellant earnestly insists that it was a debatable question of fact, upon which reasonable minds might disagree, as to whether or not the defendant railway company was negligent in running its cars across the highway on a dark and foggy night without providing a flagman, red flares, or some other means of warning to travelers at the intersection; but the authorities seem to hold that railway companies, through their agents, in the reasonable management of their trains which are rightfully upon a crossing, are not chargeable with knowledge that an automobile, bearing headlights of sufficient power to enable the driver to avoid an obstruction in the road, was nevertheless likely to crash into a moving train unless a danger signal or flagman with a lighted lantern was stationed in the highway. Gage v. Boston & M. R. Co., 77 N.H. 289, 90 A. 855, L.R.A.1915A, 363.

“In the instant case the defendant's cars were rightfully occupying the crossing, and the trainmen were exercising due care, so far as the management of the train in approaching and passing over the crossing was concerned.

“The accident was not caused by the train running into the automobile in which the deceased was riding, but by the automobile running into defendant's freight train as the latter was slowly passing over the crossing. It was not occasioned by any mismanagement of the train. In the case of Mabray v. Union Pac. R. Co., D.C., 5 F.Supp. 397, 400, it was held that a railroad company has a right to occupy a crossing in the conduct and operation of its business, and that such obstruction is in itself notice of danger, so that the railroad company is not bound to give any further warning; and that, after a train has reached a crossing, the duty of a flagman ends as to that train, since then the train itself is a sufficient warning. This doctrine also finds support in 52 Cor.Jur., p. 189, and Brown v. Southern Ry. Co. (Pennington v. Southern Ry. Co.) [5 Cir.], 61 F.2d 399.

“No question of the giving of a warning of the approaching train is here involved, because at the time of the accident the engine had passed the crossing and was several hundred feet north thereof. ‘All crossing signals are intended to protect the traveler against approaching trains and have been so regarded by our courts.’ Mabray v. Union Pac. R. Co., supra” (Italics included.)

In both the Harper case and the Mallett case, supra, relied on by the respondents as hereinbefore noted, the court specifically distinguishes the Dunlap case.

Respondents' contention “That the failure to put out a lighted lamp or flare on the road was negligent was a question for the jury,” is without merit. The authority to regulate such matters is vested in the Railroad Commission. The regulations established by the commission contain no such requirement. Obviously, the trial jury was without power to establish such a requirement and then for the failure to have complied therewith, find, in effect, such failure to have been negligence. Moreover, as pointed out in the Dunlap case, supra, railway companies are not chargeable with knowledge that an automobile is likely to be driven into the side of a moving train. Unless required to do so by ordinance or otherwise, the weight of authority sustains the proposition that the failure to maintain or use signals in the circumstances is not negligence. Manifestly, the lawful operation of a railway train is not negligence per se. The evidence reveals no act or omission on the part of the defendant company that constituted negligence under the law, which can be held to have been the proximate cause of the alleged damage.

For the foregoing reasons the judgment and order are reversed with directions to enter judgment for defendant.

DORAN, Justice.

YORK, P. J., and WHITE, J., concurred.