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


Civ. 11684

Decided: February 28, 1939

Gibson, Dunn & Crutcher, of Los Angeles (E.H. Chapman, of Los Angeles, of counsel), for appellants. Ira J. McDonald, of Los Angeles, for respondent.

A jury returned a verdict in favor of respondent for the sum of $7,500 damages for personal injuries sustained by her as the result of a collision between her automobile and a street-car of appellant corporation which was being operated by appellant Sherman. From the judgment thereafter entered in accordance with said verdict, this appeal is prosecuted.

The collision occurred between the hours of one and two o'clock in the afternoon of October 12, 1936, at the intersection of Fifty-seventh street and Pacific boulevard, which is located in a business district in the city of Huntington Park, where appellant corporation operates an electric street-car line upon its own private right of way. At the time and place in question, appellant Sherman was operating an electric car southerly along said private right of way in the center of Pacific boulevard in the block north of Fifty-seventh street. Respondent likewise was operating her automobile in a southerly direction along the west side of Pacific boulevard adjacent to and parallel with the street-car tracks. When respondent reached Fifty-seventh street she made a left-hand turn in an easterly direction across the southbound tracks of said electric railway where the collision occurred.

At the close of respondent's case and again at the end of the trial, appellants challenged the sufficiency of the evidence by moving for a judgment of nonsuit and for a directed verdict, respectively, which said motions were denied, as was also appellants' motion for a new trial.

It is here contended that the court erred in denying the motions for nonsuit and directed verdict for the reason that respondent was guilty of contributory negligence as a matter of law and was not entitled to have her case submitted to the jury. It is further contended that the court erred in its instructions to the jury.

It was stipulated between counsel for the opposing parties hereto that at the time the accident occurred, an ordinance of the city of Huntington Park was in full force and effect providing that it should be unlawful to operate any street-car at a speed greater than 15 miles per hour in business districts. It was also stipulated that the district from Fifty-sixth street southward to Fifty-seventh street is a business district; that from Fifty-seventh street to Fifty-eighth street is a school zone and on the south side of Fifty-seventh street across Pacific boulevard there is a marked school crossing.

Appellants urged that the evidence is wholly insufficient to sustain the verdict for the reason that said electric railway tracks are laid upon a private right of way and are utilized by an interurban electric street-car line, and therefore presents a situation to which the rule of the steam railroad, requiring respondent to stop, look and listen before attempting to cross said private right of way, is applicable. Huntington Park is a suburb located southerly of the city of Los Angeles, and the record reveals that the car line in question is the ordinary “yellow” car line operated by appellant corporation throughout the city of Los Angeles and its environs, and that the only basis for the application of the so-called steam railroad rule is that said car line connects the city of Los Angeles and the city of Huntington Park and is maintained upon its own private right of way through the particular district in question.

It appears from the bill of exceptions upon which this appeal is presented that respondent, according to her own testimony, was proceeding south along Pacific boulevard and when about half a block north of Fifty-seventh street she gave a signal for a left-hand turn and then dropped her hand to indicate that she was stopping at the intersection. She then came to a full stop, shifted into low gear and made a signal for a left-hand turn. As she started into the intersection she looked back along the side of her automobile and saw the street-car which, so she testified, had not entered the intersection of Fifty-sixth street (which was an entire block to the north). She then shifted to second gear, gave her signal for a left-hand turn and proceeded to make such left-hand turn across the tracks. When she had almost crossed said tracks and the rear wheels of her automobile were just about in the center thereof, she heard a bell ring, whereupon she looked around and saw the street-car just a few feet from her automobile. She said that there was then no time to do anything and it was just an instant until the car struck her. She testified that she was driving at a speed of 15 miles per hour prior to the time she stopped at the intersection, and around 10 miles per hour when she was struck. From the time she stopped until she started to make her left-hand turn across the tracks, except when she shifted gears and looked back, she was observing a northbound street-car which had stopped at the southeast corner of the intersection as well as an officer with some children standing at the said southeast corner. She testified that the point of impact was in the center of the intersection. A witness for respondent testified that the point of impact was 15 feet south of the paved portion of the right of way on the north side of the crossing. (Fifty-seventh street is 40 feet wide.) A passenger on the southbound street-car which was involved in the collision testified that the impact took place about the center of Fifty-seventh street, about the middle of the intersection; that when he first noticed the automobile it was a block north of Fifty-seventh street and was running along parallel with the street-car and that both were traveling about 18 miles an hour; that about 100 feet from Fifty-seventh street the automobile speeded up and the street-car slightly slackened its speed; that the automobile arrived at the intersection 12 or 15 feet ahead of the street-car.

Another witness testified that when the car entered the intersection it was going between 15 and 17 miles an hour, although when it was half a block north of Fifty-seventh street its speed was 30 miles an hour. Another witness, who was a passenger on the street-car, testified that midway in the block the street-car was traveling at a speed of 18 miles an hour and slowed down at the crossing to about 12 or 14 miles; that he saw the automobile when it turned from a southerly to an easterly direction and that there was approximately 20 feet between the front of the street-car and the automobile when the automobile got on the tracks after it made the turn; that when the automobile started to turn, the motorman rang the bell and applied the brakes; and that the car and automobile traveled almost across the intersection after the impact. Said witness on cross-examination testified that for half a block north of Fifty-seventh street the automobile was practically even with the street-car until the latter started to slow down for the intersection when the automobile passed the street-car and made the left turn; when the automobile entered the intersection of Fifty-seventh street, the street-car was approximately 20 feet north thereof; that he felt the brakes applied when the street-car was about 20 feet from the automobile and that the impact took place approximately south of the center of Fifty-seventh street.

The appellant Sherman, who was operating the street-car at the time of the collision, testified that when the street-car was about half a block north of Fifty-seventh street he saw the automobile traveling south in Pacific boulevard midway of the safety zone; that the street-car was traveling at about 20 miles per hour and that the automobile was just barely moving. When he first saw the automobile on the track in front of him, it was about 10 feet from the front end of the street-car; that the street-car continued at about the same speed, to-wit, 15 to 20 miles. From the time he saw the automobile back in the middle of the block until it reached the intersection, appellant was watching it to see what move it was going to make. “There was no hand signal whatever and I didn't think she was going to whirl right around in front of the street-car, right in front of the private right of way, which was done. * When I observed the automobile on the track in front of the street-car I threw off the power and tried to stop as soon as I could.” However, he testified that he did not slow the speed of the street-car any from the time he first saw respondent's machine in the middle of the block until it reached the intersection. He also testified that as respondent started across the tracks she was not moving at a speed greater than about a mile an hour—“just barely moving around the corner”; that the street-car was about 10 feet from the corner when he observed respondent making a left-hand turn; that he watched the automobile from the time it was opposite the loading zone on Pacific boulevard, before stopping at the intersection, until it crossed in front of his car. “I saw it all the time, as I said a while ago. I saw it from the time it was going right along there by the safety zone until it swung right around in front.” Also, “when I first saw it on the track, the left side of the automobile was right up against the south end of the loading zone”.

Except for the fact that a street-car runs only upon the tracks laid for it, and therefore has a better right to that portion of the street upon which it travels to which others must yield when necessary, it is generally recognized that the duties of a motorman on approaching an intersecting street and those of a driver of an automobile about to cross the tracks at such intersection are reciprocal, and each is required to approach with due regard for the rights of the other. The question as to whether the defendant company or the driver of the vehicle is responsible for a collision must be determined by the factual situation of each individual case.

The record herein reveals facts from which it must obviously be concluded that respondent was guilty of contributory negligence which proximately caused the accident herein. The evidence stands uncontradicted that respondent traveled parallel with the street-car until she was within half a block of Fifty-seventh street at which time she passed the car and reached the intersection something like 20 feet ahead of it, having seen the said street-car and knowing that it was also approaching the said intersection. While it is true that she stopped when she reached the intersection and, as she started to turn, was watching a street-car which was also nearing the intersection from the opposite direction, nevertheless, she continued without looking to see in how close proximity to the intersection the said street-car then was until she was directly upon the tracks and the car too close to be avoided.

This evidence convinces us that reasonable people could draw only one conclusion, namely, an inference pointing unerringly to the fact that had respondent used ordinary care for her own safety and looked immediately prior to driving upon the street-car tracks, the accident would have been prevented and she would not have been injured. Grandy v. Southern Pacific Co., 9 Cal.App.2d 441, 443, 49 P.2d 1127. The testimony here shows beyond question that respondent was negligent in driving upon the tracks of the railway company directly in front of an oncoming street-car which was plainly in view at the time she made the left turn and proceeded upon the tracks had she chosen to glance in the direction of the car which she had passed only a short time prior thereto. In Moss v. Boynton Co., 44 Cal.App. 474, 476, 186 P. 631, 632, it was said: “It was a duty devolving upon plaintiff, as the act of an ordinary prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty, and was not met by looking once and then looking away.” This statement was based upon the holding in Sheldon v. James, 175 Cal. 474, 479, 166 P. 8, 2 A.L.R. 1493, and has been followed without disagreement in subsequent cases. Wright v. Foreman, 86 Cal.App. 595, 604, 261 P. 481; Bullock v. Western Wholesale Drug Co., 91 Cal.App. 369, 372, 266 P. 978; Chase v. Thomas, 7 Cal.App.2d 440, 444, 46 P.2d 200; Deike v. East Bay Street Railways, Ltd., 7 Cal.App.2d 544, 550, 46 P.2d 812; Finkle v. Tait, 55 Cal.App. 425, 432, 203 P. 1031; Horton v. Stoll, 3 Cal.App.2d 687, 690, 40 P.2d 603; Koeppel v. Daluiso, 118 Cal.App. 442, 448, 5 P.2d 457. This, of course, does not mean that it is a duty to look one way and to continue so to look, but rather to look in the direction or directions of anticipated danger, and to continue to be alert to safeguard against injury. Lavin v. Fereira, 10 Cal.App.2d 710, 52 P.2d 518. In the instant case respondent being aware of the approaching car, was required to look in the direction from which it was coming before placing herself in a position of danger by driving on to the tracks upon which the street-car was traveling.

The facts in the instant case differ from those in a case where the driver of an automobile traveling along an intersecting street attempts to cross street-car tracks at a right angle. In such a case, the motorman is at least put on notice that the automobile may attempt to cross the intersection in front of his car. Here, however, respondent made her left-hand turn in front of the approaching car deliberately moving from a position of safety to one of danger, at a time when the motorman was justified in believing that she would continue to wait until his car had passed.

The motion for directed verdict should have been granted. The judgment is therefore reversed.

YORK, Presiding Justice.

We concur: DORAN, J.; WHITE, J.

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