HINKLE v. SOUTHERN PAC CO

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District Court of Appeal, Third District, California.

HINKLE et al. v. SOUTHERN PAC. CO. et al.

Civ. 5896.

Decided: February 14, 1938

T. L. Chamberlain, of Auburn, and Devlin & Devlin & Diepenbrock and Horace B. Wulff, all of Sacramento, for appellant. Lowell Sparks, of Auburn, and Robert E. Burns and P. J. Murphy, both of San Francisco, for respondents.

The respondents had judgment against the Southern Pacific Company, a corporation, for personal injuries alleged to have been suffered by them in a collision which occurred between an automobile in which they were riding and a train operated by the agents and employees of the Southern Pacific Company, in the county of Placer, on or about the 31st day of July, 1935. From this judgment the Southern Pacific Company, a corporation, appeals.

The complaint charges negligence in the following language:

“That on the 31st day of July, 1935, at or about the hour of 10:20 o'clock P. M. of said day, and while the plaintiff Bliss I. Hinkle, was being driven in an automobile in a general southerly direction along and upon said State Highway Number 89, and when at a point where said Highway Number 89 crosses the railroad tracks hereinabove referred to, said defendants, and each of them, so negligently operated, conducted and ran a certain train owned by the defendant, Southern Pacific Company, a corporation, in a generally easterly direction, over and along said railroad tracks so as to cause it to, and it did, at said time and place aforesaid, collide with the automobile in which plaintiff Bliss I. Hinkle, was being driven, as aforesaid, thereby causing said plaintiff, Bliss I. Hinkle, to be, and she was cut, bruised, lacerated, shocked and injured,” etc. The complaint contains a like count as to the plaintiff George H. Hinkle.

No other acts of negligence are charged in the complaint, and, so far as the complaint is concerned, the negligence alleged is confined to the operation of the train. The verdict of the jury was against the company only.

The record shows that on the night of July 31, 1935, at about the hour of 10:20, at a place about one–quarter of a mile west of Tahoe Tavern, the railroad owned by the Southern Pacific Company, and upon which it operates trains, crosses or intersects highway No. 89. The railway runs in a generally westerly and easterly direction. Highway No. 89 extends in a northerly and southerly direction. At the time of the collision, the respondents were operating a Ford sedan and were traveling in a general southerly direction. The driver of the automobile was George H. Hinkle, the husband of Bliss I. Hinkle. The train operated by the agents of the Southern Pacific Company was composed of a box car, oil tank car, and an engine, and was being backed in an easterly direction toward the tavern just mentioned. Approaching the highway the oil tank car was the lead car of the train; then came the box car, the tender of the engine, and then the engine. The engine itself was facing westerly. The automobile was struck by the coupler of the oil tank car, moved several feet, and in this collision the plaintiffs were injured. There was no overhead light at the crossing, and no automatic wigwag. The testimony of the plaintiffs is to the effect that as they approached the crossing (which, by the way, is a crossing over a portion of the railroad yards maintained by the company) they paused or stopped their automobile and looked for any approaching train, saw nothing, and heard nothing. Previously to this the respondents had attempted to cross the same railroad track at a point nearer the Tahoe Tavern, but found the same obstructed by a train which was made up, scheduled to leave the tavern at about 10:30 p. m., and, desiring not to be delayed in reaching the point of their destination, they traveled about two–tenths of a mile to the crossing in question.

On the part of the company, two brakemen, the fireman and the conductor testified that the usual crossing whistle had been given; that the bell was continuously rung; that there were several lights on the engine; and the two brakemen testified that they were stationed upon the tank car, each one carrying a lighted white lantern; that, as the train approached the crossing, it slowed down to a speed of about four miles per hour; that one of the brakemen jumped off of the tank car, ran ahead of the train to the crossing in order to protect the same from automobiles or pedestrians.

It appears from the testimony that after the automobile had stopped at a point several feet from the main line on which the train was being operated, or backed, it immediately started forward at a speed of about ten miles per hour. The brakeman, who testified that he had gone forward to the crossing, testified that he had to jump out of the way to avoid being struck by the advancing automobile. The respondents testified that they did not see any brakeman there at the crossing.

After the collision, two witnesses testified that the radio in the automobile was going. The respondents testified that they had not started the radio preceding the collision. The testimony is all to the effect that it was a quiet evening, no wind blowing, rather warm, and that there were no disturbing noises. One of the plaintiffs testified that the night was quite dark. The photographs introduced as exhibits show that there are a number of pine trees along the railroad right of way. There is testimony in the record, however, that a train traveling at the time named, and under the conditions shown by the record, could have been seen for several hundred feet. The respondents were not expecting a train from the west, but were looking for, and expecting that the train which they had seen at the tavern would be moving westerly near the time they were approaching the crossing.

The record shows that two trains were operated upon the railroad in question, daily, one arriving early in the morning, and the other departing shortly after 10 o'clock in the evening. The train so operated was what is known as and called a “mixed train,” hauling both freight and passenger cars.

Upon this appeal it is contended, first, that the respondents were guilty of negligence as a matter of law; and, second, that the court permitted the jury to find a verdict against the appellant upon issues not raised by the pleadings, and not supported by any theory upon which the cause was tried.

While the preponderance of the testimony in the record is to effect that the crossing whistle was sounded, that the bell on the engine was continuously rung, that the train slowed down to a speed of about four miles per hour, that a brakeman ran ahead of the backing train to the crossing, carrying a lighted white lantern, and that the lights on the train could have been seen by the respondents before venturing upon the crossing, had they really stopped, looked, and listened, yet there is negative testimony to the effect that no whistle was heard, that no bell was rung, that no lights were seen upon the train, that no lights were seen upon the leading tank car, and that no light was seen upon the crossing; that the trees along the right of way of the railroad cast some shadows so as to obscure the view of the backing train. Without going into this testimony in further detail, we may state it is sufficient to show that this court, upon appeal, is not warranted in holding that the plaintiffs were guilty of contributory negligence as a matter of law. The jury having found a verdict against the company only, and not against the agents and operators of the train, it follows as a matter of course that the jury did not base its verdict in favor of the plaintiffs upon any negligence in the operation of the train, but upon other causes which we will further consider. Before doing so we will again call attention to the charging part of the complaint, basing the cause of action purely upon the negligent manner of operating the train.

On the part of the appellant it is claimed that that is the exclusive theory upon which the cause was tried, and upon the part of the respondents, that the theory upon which the cause was tried included, also, negligence as to the actions taken, or lack of precaution taken to safeguard the crossing where the collision occurred. A reading of the transcript convinces us, however, that the appellant's theory is correct, and, while the testimony in the record, and the photographs introduced show the physical appearance of the crossing, the cause was not tried or based upon such facts.

The second contention of the appellant appears to be well taken, as at the conclusion of the trial the court, of its own motion, gave to the jury the following instruction: “You are instructed that although as a matter of law the defendant was not required to equip its employees with a red lantern for the purpose of signaling the approach of a train at a highway grade crossing, and although in this action you cannot find the defendants guilty of negligence because of the absence from the crossing of an automatic signaling device to warn travelers upon the highway of the approach of a train, and also, although the law does not require the defendants to have any light on the forward end of the lead car in any switching movement within the yard limits, and it is not negligence to make such a movement without a light on the forward end of the lead car, nevertheless, if from a consideration of all the facts and circumstances of this case you find from the evidence that at the time and place referred to in plaintiffs' complaint and in the evidence an ordinarily prudent person would have maintained a person with a red lantern, would have furnished an automatic signaling device, or would have had on the forward end of the lead car in such switching movement within the yard limits, or would have maintained a flagman, or would have rung a bell, or sounded a whistle, or either one or more thereof, at or near the crossing, to warn travelers of the approach of said train to said crossing, and you further find that the Southern Pacific Company, a corporation, through its agents and servants acting in the discharge of their duties and within the scope of their authority, did not furnish and maintain the same, and that by reason thereof, the plaintiffs were injured, then and in that event I instruct you, the defendant Southern Pacific Company, was guilty of negligence.”

By giving this instruction the court first advised the jury that they could not find the defendants guilty of negligence because of the absence from the crossing of an automatic signal device. The court also instructed the jury that it was not negligence for the defendants not to have any light on the forward end of the lead car in any switching movement within the yard limits.

The court likewise instructed the jury that the law did not require the company to equip its employees with a red lantern, and then, after instructing the jury that it could not find the defendants guilty because of the absence from the crossing of an automatic signal device, the court proceeded to instruct the jury that if, in their opinion, a reasonable person would have so protected the crossing by an automatic signal device, then and in that case they could find a verdict against the company. The court also instructed the jury that if, in their opinion, an ordinarily prudent person would have maintained, at the crossing, a person with a red lantern, they could find against the defendant. The court further instructed the jury that, if they found that an ordinarily prudent person would have had a light on the forward end of the lead car in such switching movement, again, a verdict might be rendered against the defendant company. The court likewise instructed the jury that, if they found that an ordinarily prudent person would have rung a bell or sounded a whistle or maintained a flagman, or either one or more thereof, at or near the crossing, and if they further found that the Southern Pacific Company, through its agents and servants, in the discharge of their duties, and within the scope of their authority, did not furnish and maintain the same, and that by reason thereof the plaintiffs were injured, a verdict might be rendered against the company.

Several issues are here presented for the consideration of the jury which were not included within the pleadings, and several reasons pointed out upon which the jury might base its verdict. In submitting these issues to the jury no standard was set for determining the necessity of maintaining an automatic signal device, nor anything shown necessitating the equipping of the flagman with a red lantern instead of a white lantern, or of maintaining a flagman at said crossing. There does not appear to be any testimony in the record indicating that the crossing in question was either specially or peculiarly hazardous, but the crossing could at all times, whether in daytime or nighttime, be readily observed.

We might further call attention to the contradictory and conflicting character of the instruction which first tells the jury that they cannot do a certain thing, and thereafter informs the jury that they may take the action which they have just been advised that they cannot do.

A somewhat similar question was presented in the case of Young v. Southern Pacific Company, 182 Cal. 369, 190 P. 36, 41, the court instructed the jury as follows: “The jury is instructed that if under the circumstances existing at a crossing proper warning of the danger of the approach of trains cannot be given unless some one is stationed thereat to give warnings, it is the duty of a railroad company making use of the crossing to have some one stationed at the crossing to give such warnings, or to approach such crossing with the engine under such control that it can be stopped in time to avoid injury.”

This instruction was held erroneous. The court in so doing used the following language: “Aside from the proposition that this instruction submitted to the jury, without any standard for the determination of the same, the question of what constituted ‘proper warning’ of the danger of the approaching train, the instruction was objectionable because the complaint did not allege the failure to have a flagman at the crossing as a basis of the claim of negligence. The instruction should not have been given.”

In Green v. Southern Pacific Company, 53 Cal.App. 194, 199 P. 1059, 1062, exactly the same question which we are considering as to issues was presented and passed upon by the court. There, the court allowed an amendment to the complaint so as to clearly present the question as to the negligence of the company relative to the precautionary measures taken to safeguard the crossing. Also, the question as to the verdict exonerating the trainman from negligence, establishing the fact that the jury had found its verdict upon other issues. In that case it further appears that negligence was charged in general terms, and, with the amendment of the complaint, was not based solely upon the operation of the train. This appears from the following language found in the opinion in that case, to wit:

“We have noted the fact that defendant's engineer, Brown, was a codefendant in this action. Upon these facts appellant suggests that because Brown was its agent appellant is exonerated by the verdict in favor of the agent. In Bradley v. Rosenthal, 154 Cal. 420, 425, 97 P. 875, 129 Am.St.Rep. 171, it was decided that where recovery is sought, based upon the act or omission of an agent whom a principal did not direct and in which the principal did not participate, and where thus his responsibility is simply the responsibility cast upon him by law by reason of his relationship to his agent, the effect of the judgment in favor of and exonerating the agent is such that the principal is thereby relieved of responsibility. See, also, Fimple v. Southern Pac. Co., 38 Cal.App. 727, 177 P. 871. So, in the case at bar, if the claim of negligence as charged against appellant arose solely from the conduct of the engineer, in the operation of the engine and cars, without express instructions of appellant governing the particular manner of running the train, and without other acts of negligence on the part of appellant, a verdict and judgment in favor of the engineer would relieve appellant from liability for such alleged negligence.

“The complaint, as amended at the trial, contains the allegation that, prior to the time when said freight car came in contact with the deceased, the defendant corporation carelessly and negligently failed and neglected to place or maintain any flagman or signalman, or any other person or persons, or to show or give any signal or signals whatever, at or near said Osos street, or on or near said gondola freight car, to warn or notify pedestrians, or other persons, crossing or about to cross said tracks of defendant corporation on said Osos street, of the approach of said gondola freight car and said locomotive. The evidence amply proved the truth of that allegation. That charge of negligence presented one of the issues which was submitted to the jury.”

In this particular our attention is called to the case of Bush v. Southern Pacific Co., 106 Cal.App. 101, 289 P. 190, where an instruction was given to the effect that the jury might consider the absence of a flagman or absence of an automatic device to warn of the approach of a train, as supporting the instruction given in the instant case. On the part of the appellant it is contended that paragraph VIII of the complaint in that case alleged that the Southern Pacific Company carelessly and negligently failed and neglected to place or maintain, or cause to be placed or maintained, any flagman or signalman, or any other person or persons, to show or give on said road to warn or notify automobile drivers of the existing presence or location of said crossing. The opinion, as reported, is silent as to the pleadings involved in that action, and therefore it cannot be held as authorizing the giving of the challenged instruction. If the complaint contained the allegations as set forth by the appellant, the issue relative to the maintenance of the crossing was then squarely presented to the jury for its consideration.

In the case of Grand Trunk R. Co. v. Albert Ives, 144 U.S. 408, 12 S.Ct. 679, 684, 36 L.Ed. 485, considering the question of maintaining a flagman or an automatic device to warn of the existence of a railroad crossing, the court states that, before such question should be submitted to the jury, the evidence should show the hazardous character of the crossing. The language of the court is as follows:

“It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city; or that the view of the track is obstructed either by the company itself, or by other objects proper in themselves; or that the crossing is a much traveled one, and the noise of approaching trains is rendered indistinct, and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business; or by reason of some such like cause; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country”––citing a number of authorities.

In the instant case the record shows that the plaintiffs were familiar with the crossing in question.

In Cummings v. Pennsylvania Ry. Co., 301 Pa. 39, 151 A. 590, 71 A.L.R. 1156, the Supreme Court of Pennsylvania held that there is no common–law duty on the part of a railway company to place a flagman or safety gates at a crossing. Quoting from the syllabus, it appears that the court gave an instruction in substance as follows, which was held erroneous: “An instruction in an action for the death of one killed at a railroad crossing, that, even though warning signals were given by the approaching train, yet if, under the particular circumstances of the case, the jury should find that the public safety was not reasonably secured at the crossing by reason of the absence of a watchman or gates, they might still find that the defendant was negligent, is erroneous as permitting the jury to find negligence from the absence of a watchman or safety gates alone.”

In the case of Tonning v. Northern Pacific Ry. Co. et al., 180 Wash. 374, 39 P.2d 1002, the Supreme Court of Washington held that the waving of a white lantern instead of a red one at a crossing was sufficient warning that danger from an approaching train was imminent, to a motorist accustomed to using the crossing in question. In the case before us the instruction authorized the jury to find a verdict against the company if, in their opinion, a red light instead of a white light should have been used, by holding that, in the absence of a red light, the company might be held negligent.

In Rohthstein v. Boston & Maine R. R., 2 N.E.2d 205, 208, the Supreme Court of Massachusetts thus considers the question of the color of the lantern waved, and, referring to a former case, said: “The evidence that he waved a white lantern instead of a red one is immaterial in the absence of any evidence that a white lantern was ever used by the defendant's employees to invite travelers to cross tracks, or that the plaintiff's intestate had any reason to treat it as an invitation to pass over the crossing”––citing a number of cases.

While there is some evidence in the record that highway No. 89 carries considerable traffic, there is no testimony in the record that there were any extra hazards connected with the crossing in question, or that the traffic using said crossing or said highway at nighttime is at all heavy.

Other cases might be cited to the effect that the crossing where an accident occurs must be shown to have some extra hazard before a railroad company is under the necessity of maintaining a flagman or automatic wigwag device, before such question should be submitted to the jury outside of the pleadings and of the cause as tried, and allowed the jury to find a verdict without any supporting testimony. It is needless to add that such procedure was prejudicial.

The judgment is reversed.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.