HOPKINS v. PACIFIC ELECTRIC RY CO ET AL

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District Court of Appeal, Fourth District, California.

HOPKINS v. PACIFIC ELECTRIC RY. CO. ET AL.

JOHNSON v. PACIFIC ELECTRIC RY. CO. ET AL.

Civ. 2500.

Decided: November 12, 1941

Frank Karr, C. W. Cornell, and O. O. Collins, all of Los Angeles, for appellants. Blodget, Kutchel & Tobias, of Santa Ana, for respondents.

Defendants have appealed from two judgments rendered against them for damages resulting from a collision between an automobile driven by Hayward C. Johnson in which William Hopkins was riding as a guest and an electric motor car owned and operated by defendant. The cases of the two plaintiffs were consolidated for trial and are consolidated here on appeal.

The accident occurred at about six o'clock on the morning of August 8, 1939, in the city of Huntington Beach at the intersection of Indianapolis street with the tracks of defendant Pacific Electric Railway Company. The morning was clear and the roadway was dry.

Indianapolis street runs east and west. It has a hard surface twenty–two feet wide in its center with dirt shoulders nineteen feet wide on each side of the paving.

The tracks of the Pacific Electric Railway Company cross Indianapolis street at right angles west of the center of the block bounded by Alabama avenue on the east and Lane avenue on the west. The tracks, at least between intersecting streets if not over them, are on a forty–foot private right of way owned by the Pacific Electric Railway Company. The tracks are straight for some considerable distance on both sides of Indianapolis street.

The portion of the block on the north side of Indianapolis street from the right of way east to Alabama avenue is closely built up with houses so that the view of the tracks to the north is obstructed to a driver approaching from the east, until he passes a point about twenty–four feet east of the east rail. The view of the tracks to the south is unobstructed.

Defendant railway company's tracks were not regularly used. There is evidence that on occasions one electric train a day passed each way over them and that sometimes as much as a week elapsed between trains. There was the usual cross–arm warning sign on the east side of the right of way, which was the only warning of the railroad crossing. Both plaintiffs were familiar with the crossing, having driven over it many times prior to the accident.

Johnson was seated on the left side of the front seat, driving his automobile at the time of the accident. The front of the car extended about eight feet in front of him William Hopkins, the other plaintiff, was seated on the front seat at Johnson's right.

Johnson testified that he was traveling west on Indianapolis street at the time of the accident. He was traveling between fifteen and twenty miles an hour when he crossed Alabama avenue and reduced his speed to between twelve and fifteen miles an hour as he approached and attempted to cross the tracks. As he approached the tracks he looked to the south where his view was unobstructed and saw that there was no train approaching from that direction. He listened and heard no bell or whistle nor the noise of an approaching electric train. He also looked to his right but of course could see nothing until he had cleared the view–obstructing houses. He first saw the electric train about seventy–five feet from the intersection bearing down on him from the north at a speed of between forty and forty–five miles an hour when the front of his car was about six feet east of the east rail. Realizing that he could not stop his car in time to avoid a collision he endeavored to get across the tracks before the electric engine hit his car. He was unsuccessful in this attempt and the front of the electric engine hit the automobile at about the middle of the right rear door. The automobile was thrown down the right of way about fifty–two feet, where it stopped against a substantial fence along the west side of the right of way. The impact set the brakes on the electric train and with the wheels locked it proceeded down the tracks a distance of 390 feet before coming to rest. The train consisted of an electric engine and a loaded tank car, the two having a total weight of 234,574 pounds.

William Hopkins, the guest, corroborated Johnson's testimony as to the speed of the automobile when it was approaching and crossing the railroad tracks. He testified that he listened for approaching street cars and heard no bell nor whistle nor the noise of an approaching train. He did not look. Having no warning of approaching danger he could do nothing to warn Johnson of it.

R. H. Rothrock was the motorman in charge of the electric train. He testified that the track in question was a “yard track” of the electric railway system. He crossed the intersection going north at about 5:30 o'clock on the morning of the accident. He picked up the tank car and proceeded south to the crossing. He gave two long and two short blasts on the whistle, starting at a whistling post which he estimated was between 1,000 and 1,400 feet north of the intersection. He testified that at about the whistling post he turned on the device that automatically rang the car bell and that it continued to ring up to the point of impact. He further testified that he was seated in the electric engine about six or seven feet from its front; that he was looking south along the right of way as he approached the intersection; that he did not see the Johnson automobile until the front of the train was about five feet north of Indianapolis street; that the center of the automobile then was about five feet east of the east rail; that when he first saw the automobile, the front of the electric car was about five feet north of the north edge of the pavement; that the electric train was traveling about twenty miles an hour; that on seeing the automobile “I immediately applied my brake into the emergency; I reached down and grabbed ahold of the handle and shoved it as far as I could into the emergency, but it had no effect”; that the collision occurred at about the time the brakes were applied.

An engineer produced as a witness for defendants testified that considering the weight of the train and the distance traveled after the collision the speed at the time of collision could be computed; that the speed was approximately twenty–seven miles per hour.

A number of witnesses for both plaintiffs and defendants testified on the question of the whistle having been blown and the bell having been rung before the accident. A study of this evidence leaves the impression that a preponderance of this conflicting evidence would support the conclusion, if made by the jury, that the bell was never rung and that the whistle was not blown after the train passed the whistling post.

Defendants first urge that the judgments against them must be reversed because, as a matter of law, no negligence on their part was proved. This contention is without merit.

The Supreme Court considered the question of negligence in the speed of an electric train when crossing Hill street in the city of Los Angeles in Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, 137 P. 31, 32. It said:

“As we have said, the jury was warranted in concluding that the train was going at the rate of 40 miles an hour, or about 60 feet a second.

“We do not think that it can fairly be held, as a matter of law, that the defendant was not guilty of negligence in view of the circumstances stated. It is said that the only negligence asserted is the excessive speed of the train, and that a rate of speed of 35 or 40 miles an hour for an interurban train at and near the point where the accident occurred is not so excessive as to constitute negligence. As was said in Bilton v. Southern Pacific Co., 148 Cal. 443, 447, 83 P. 440, 442: ‘There can be no doubt that the question as to whether or not a rate of speed at a crossing is so dangerous or excessive as to constitute negligence must depend upon the particular circumstances there existing, and if the circumstances are such that reasonable and impartial men may well differ as to whether the speed maintained at the particular place showed a want of reasonable care, the question as to whether the railroad company was guilty of negligence in maintaining such speed is one for the jury.’ ” See, also, Young v. Pacific Electric Ry. Co., 208 Cal. 568, 283 P. 61. Under this rule and the circumstances here presented we believe that the question of whether or not the speed at which the electric train was being driven was negligence was a question of fact addressed to the jury and not one of law addressed to this court.

Also, the evidence on the question of the bell being rung as required by section 486 of the Civil Code was in sharp conflict. If the jury concluded that the bell was not so rung and no other suitable warning was given of the approach of the train it would have been justified in predicating a finding of negligence on those facts.

It is next urged that Johnson, the driver, was guilty of contributory negligence as a matter of law in failing to stop his car and actually ascertaining whether or not a train was approaching the crossing before driving the automobile into a place of danger.

The “stop, look and listen” rule has been considered and applied to the varying facts in a multitude of cases in California. The instances in which the rule has been applied with considerable strictness are numerous and it should not be necessary to review the many cases dealing with this subject relied upon by defendants. The question to be considered here is the applicability of the strict construction of the rule generally found in those cases where the accident occurred at an obstructed crossing of a public road over a railroad right of way in a sparsely settled country district, to the facts of this case in which the collision occurred in a railway crossing over a city street in a closely built up district of the city.

Here the railroad traversed a closely built up residential district of the city of Huntington Beach. Its tracks crossed a paved street of that city on the grade of the street. Few trains ran over those tracks and intervals of a week between trains sometimes occurred. Can it be said that every time a motor vehicle driver approaches this crossing from the east on Indianapolis street he must stop his car at the edge of the right of way, walk clear of the view–obstructing house and determine if one of the infrequent trains using the tracks is approaching the crossing? If such is the law it would be virtually impossible for motor vehicles to use a busy street which crosses electric railway tracks at a place where a motorist's view of the tracks is obstructed.

What was said in Amendt v. Pacific Electric Ry. Co., 46 Cal.App.2d 248, 115 P.2d 588, 593, should be applicable here: “The rule of stop, look and listen, invoked by respondent, originated at a time when the only dangerous vehicles to be encountered were the locomotives which crossed highways, country lanes and bypaths. In the interest of economy the burden was cast upon the traveler who intended to cross railroad tracks to make certain that the time was opportune for his safety before attempting the crossing. But this rule cannot be applied to crossings of streetcar tracks on the streets of the modern municipality.”

Billig v. Southern Pacific Co., 192 Cal. 357, 219 P. 992, 994, involved the collision of a motor truck and a street car propelled by a gasoline motor at a point in the country outside city limits where a country road crossed the right of way of the defendant railroad. The Supreme Court there held that it was the duty of the truck driver not only to look and listen but to stop, if necessary, to avoid danger. In so holding it was also remarked that it was the duty of a motor vehicle driver to stop, when necessary when “approaching the crossing of a suburban railroad being operated outside of the limits of cities”. (Italics ours.)

The case of Loftus v. Pacific Electric Ry. Co., 166 Cal. 464, 137 P. 34 (facts stated in Tousley v. Pacific Electric Railway Co., supra), is very similar factually to the case before us. There the accident happened at the crossing of Hill street in the city of Los Angeles over the Pacific Electric Railway Company's tracks. Loftus's view of the tracks was obstructed. He looked and listened for approaching cars, but did not stop before proceeding onto the tracks. He did slow down. See Tousley v. Pacific Electric Railway Co., supra, 166 Cal. page 459, 137 P. 31. It was urged that Loftus was guilty of contributory negligence as a matter of law in failing to stop before driving into a place of danger. The Supreme Court rejected this argument and said [[[[166 Cal. 464, 137 P. 35]: “We think the present case is not one in which it can be said that the uncontradicted evidence forces the conclusion that the plaintiff approached the track without exercising the care which an ordinarily prudent man, situated as he was, would have exercised.”

The cases of Swigert v. Pacific Electric Ry. Co., 7 Cal.App.2d 661, 47 P.2d 353, Cooper v. Southern Pacific Co., 43 Cal.App.2d 693, 111 P.2d 689, Amendt v. Pacific Electric Railway Co., supra, and Will v. Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44, all support the conclusion that there is no absolute duty imposed on a motorist or a pedestrian to stop, as well as to look and listen, before proceeding onto the tracks of a railway company situated at a crossing of a city street in a closely built up district; that under such circumstances the question of a plaintiff's negligence in failing to so stop generally is one of fact for a jury and not one of law for the court. Under the authority of these cases we must hold that the question of the contributory negligence of Johnson, if any, was one of fact and not one of law.

Defendants also urge that Hopkins was guilty of contributory negligence as a matter of law. This argument finds little evidentiary support. Hopkins was the guest of Johnson and the negligence of Johnson, if any, was not imputable to him. Tousley v. Pacific Electric Railway Co., supra. Johnson was in no way subject to the control of Hopkins nor under his supervision or direction as to the manner in which he operated the automobile. What was said in Fujise v. Los Angeles Ry. Co., 12 Cal.App. 207, 107 P. 317, 320, a guest case, is applicable here.

“It cannot be said in this case, as a matter of law that the failure of the deceased to look to ascertain the position of the car ‘before turning across the track,’ as found in answer to special interrogatory No. 14, was contributory negligence. As said by the Washington court in the case of Wilson v. Puget Sound Co., 52 Wash. 522, 101 P. [50] 53, [132 Am.St.Rep. 1044], in relation to the driver of an automobile: ‘The deceased [the guest] had a right to assume that the driver was competent, that he knew the capacity of his machine, and that he would not put it in a perilous position.’ ”

It follows that we cannot conclude that Hopkins was guilty of contributory negligence as a matter of law. That question was one of fact for the jury.

We will now turn to the really difficult phase of the case, namely, the instructions proposed by the plaintiffs and given to the jury. Some of them are novel to the jurisprudence of California. Also, some of the instructions proposed by defendants and given to the jury are more favorable to defendants than the circumstances here appearing ordinarily permit.

Plaintiffs' instruction number six reads as follows:

“Even where a person is seen approaching the crossing the company owes him the same duty only that it owes to the general public––that is, reasonable diligence and care to avoid injury. In such a case the engineer is not bound to stop the train; he may act on the supposition that the traveler will stop before reaching the track; but he must not rest upon this supposition so long as to allow his engine to reach the point where it will become impossible for him to control his train, or give warning in time to prevent injury to the traveler, supposing the latter to continue his course. When it is apparent, or when in the exercise of reasonable diligence it should be apparent, to the company that a person on its track or about to get on its track is unaware of his danger or cannot get out of the way, it becomes the duty of the company to use such precautions by warning, applying brakes or otherwise as may be reasonably necessary to avoid injury to him.”

A railroad company is not an insurer of the safety of motorists crossing its tracks. It is not absolutely required to avoid injuring a traveler on or approaching its tracks. It is only required to use reasonable care and caution in attempting to avoid such injury. See Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 59 P.2d 617.

Plaintiffs' instruction number ten reads as follows:

“You are instructed that it is as much the duty of the defendants to avoid the accident as it was the duty of the plaintiff Johnson, and if you believe that the defendant motorman, in the exercise of ordinary care could have seen the automobile approaching and realized, or in the exercise of ordinary care should have realized, that the plaintiffs were about to drive onto the track, and that they were unaware of the danger and could not get out of the way, and the motorman could have avoided the accident by applying his brakes, and slowing or stopping the train, but negligently failed to do so, then I instruct you that the motorman and the defendants were guilty of negligence.”

Defendants maintain that this instruction was a very incorrect attempt to state the doctrine of the last clear chance. If it was such an attempt the instruction was erroneous and omitted essential elements of that rule. See New York Lubricating, etc., Co. v. United Railroads, 191 Cal. 96, 215 P. 72; Rasmussen v. Fresno Traction Co., supra; Lasch v. Edgar, 46 Cal.App.2d 726, 116 P.2d 949.

In replying to the criticisms on this instruction plaintiffs admit that the doctrine of the last clear chance has no application to the facts of this case and maintain that they did not attempt to state that doctrine in the instruction but merely stated a rule of due care that should govern the conduct of the motorman.

The instruction seems to us to be an incorrect attempt to state the doctrine of the last clear chance. If it was not such an attempt it placed an undue burden of extreme care on the motorman. In either situation the instruction was erroneous. It fails to take into consideration the reciprocal duties which the automobile driver and the motorman owed to each other and which to some extent at least must govern the answer to the question: What was due care on the part of either under the circumstances?

Plaintiffs' instruction number eighteen is particularly erroneous. We have added our emphasis to portions of it. It is as follows:

“A railroad company is bound to take such reasonable precautions for the safety of travelers at public crossings as ordinary prudence would indicate. The duty of the company is usually expressed by the term ‘ordinary and reasonable care’. What constitutes ordinary and reasonable care must, however, be determined in the light of all the surrounding facts and circumstances so that the care required to prevent the infliction of injury is always proportioned to the danger and chances of injury. In some localities in thickly settled communities, closer vigilance and more safeguards are required on the part of the railroad company than would be necessary in other localities. What would be due care in one locality might be negligence in another. Greater caution and circumspection is required under some circumstances, as for instance where the view of the track is obstructed.

“At ordinary crossings it is the duty of the railroad company to keep a lookout, to run at a reasonable rate of speed, and to give timely warning of the approach of engines or trains. The lookout answers one purpose, the warning another, and the control of the speed yet another, and it often happens that the observance of either without the observance of all will not afford the required, or indeed, any protection.

“The lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning is to give the traveler notice to keep out of the way and the control of the speed is designed to make both the lookout and the warning more effective.

“At a crossing within a city or where the travel is great, reasonable care would require a flagman constantly at the crossing, or gates or bars, so as to prevent injury, but such care would not be required at a crossing in the country where but few persons passed each day.

“If a railroad crossing is especially dangerous to travelers on account of its locality or mode of construction, or because the view is obstructed, the railroad company must exercise such care and take such precautions as the dangerous nature of the crossing requires, and failing in this, is guilty of negligence.

“In other words, if a railroad company, in the management of its business, causes unusual peril to travelers, it must meet such peril with unusual precautions, and failing in this is guilty of negligence. This rule is particularly applicable where the traveler's view of approaching trains at a crossing is so obstructed that they cannot be seen until close to the track. In such a case it becomes the duty of the railroad company to use extra caution to avoid collision, as by a less amount of speed, or by increased warnings, or otherwise; or if an unslackened speed is desirable, by keeping a watchman on duty, or some other sufficient means of warning travelers.”

Plaintiffs cite the case of Grand Trunk Ry. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, as supporting the last quoted instruction. It is true that some of the expressions found in the instruction are paraphrases of language there used. It is also true that the emphasized portion of the instruction is almost an exact copy of an instruction quoted in that opinion from Central Passenger Railway Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441, 9 Am.St.Rep. 309.

The emphasized portion of the instruction places the burden on the defendant railway company of placing a flagman (or gates or bars) at a crossing (any crossing) within a city where the travel is great. While this may be the law in Kentucky, we have been cited to no case holding that it is the law in California, and know of no such rule in force here, where the necessity for a crossing guard is generally committed to the jurisdiction of the railroad commission. That this instruction was seriously erroneous cannot be doubted.

Instruction nineteen, given at plaintiffs' request, reads as follows:

“You are further instructed that the question as to whether or not the defendants were guilty of any negligence in the operation of their trains which proximately caused the injuries to the plaintiffs or either of them, involves the query as to whether or not reasonable prudence and care on the part of the railroad company, or the defendants, required it to have slowed down, or operated at a slower speed, or required it to have maintained or provided a flagman, or provided some other method or means of notifying the public of the approach of a train at this intersection. In determining this question you will consider whether or not under similar conditions the reasonably careful and prudent operator of a train would have provided a flagman or other means to give notice of the immediate approach of the train, or would have operated the train at a slower speed. If you find that a careful and prudent train oprator would have operated the train at a slower speed, provided such flagman, or given such other notice which was not furnished by the defendants in this case, then you will find that any such negligence contributed proximately to the injuries of plaintiffs, or either of them, and in addition that either of such plaintiffs was not guilty of any negligence contributing proximately to their own injuries, then the defendants would be liable in damages to such plaintiff who was not negligent.” (Emphasis ours.)

Besides other defects common to other instructions we have discussed, the emphasized portion of the instruction takes the question of the proximate cause away from the jury, in so far as defendants are concerned. That this was error should need neither argument nor citation of authorities.

Defendants complain of several other instructions given the jury at the request of plaintiffs. While several of those instructions were improper and should not be used as future models, we need not quote them here in this already too extended opinion. The errors in those other instructions are not as serious as the errors in those quoted and some of the mistakes in some of them were cured by other proper instructions.

As there are serious errors in some of the instructions it remains for us to consider the effect of section 4 1/2 of article VI of the Constitution on this case. As Johnson was the driver of the automobile and Hopkins was his guest without the right of control over the driver, we must consider each of their cases separately under this phase of the case as far as the contributory negligence, if any, of each plaintiff is concerned. Of course the rules governing the negligence, if any, of the defendants are the same in both cases.

As we have already observed, there is substantial evidence in the record, if accepted as true, pointing to negligence on the part of defendants. What seems to us to be a preponderance of the evidence supports the conclusion that the electric train crew gave no proper warning with the bell when approaching the crossing which of course amounted to negligence. § 486, Civ.Code. Further, under the evidence the jury might well have concluded that the speed at which the train was operated showed a lack of due care under the circumstances of this case.

On the other hand the question of contributory negligence on the part of Johnson is very close. Had the jury found against him on this question such a finding would have had evidentiary support. Under such circumstances we believe that his case should have been submitted to the jury under proper instructions and not under instructions containing the defects appearing in those we have quoted. The emphasized portion of plaintiffs' instruction number nineteen virtually took the question of proximate cause of the accident away from the jury. Under it the jury may have agreed upon its verdict with the belief that the negligence of defendants having been determined, the question of whether the negligence of Johnson proximately caused or contributed to the collision need not have been considered. With the many errors appearing in the instructions we cannot support the judgment in favor of Johnson.

The case of Hopkins differs from that of Johnson in the important particular that the contributory negligence of Johnson, if any, could not have been imputed to Hopkins. The implied finding of the jury that Hopkins was free from contributory negligence seems to us to be supported by the preponderance of the evidence as is the fact, if it be a fact, that the bell of the electric train was not rung as required by section 486 of the Civil Code, which in itself constitutes negligence. Ordinarily such evidence would be sufficient to support a judgment in favor of Hopkins and to invoke the provisions of section 4 1/2 of article VI of the Constitution.

Here, however, it is utterly impossible to determine upon what act or acts of negligence or supposed negligence of defendants the jury based its verdicts. That body might have based them on the negligence of the train crew in failing to ring the bell, if such was found as a fact to be true. However, we cannot overlook the conflicting evidence on this question. We must also remember that conflicts in the evidence and the credibility of witnesses are questions addressed to and to be settled by the jury and not an appellate court. There is evidence which, if accepted as true, shows that the bell had been properly rung. We are not at liberty here to usurp the functions of the jury and weigh the evidence to this effect and judge the credibility of the witnesses testifying on this question. The jury might have concluded that the bell was rung and still have based its verdicts on the failure to maintain a flagman at the crossing under the erroneous instruction numbered eighteen which we have quoted. It might have found that the bell was rung and disregarded the instruction that a flagman or other crossing guard was necessary and still have found defendants negligent in not so operating the train that the trainmen could have avoided the accident under the quoted erroneous instruction number six.

To illustrate the impossibility of arriving at any intelligent conclusion as to the basis of the verdicts, we need only to point to defendants' instruction number twelve, which told the jury that it was the duty of Johnson not only to look and listen but to stop before driving onto the tracks if he could not otherwise be sure that a train was not dangerously near; that the failure to so stop was negligence. This instruction, together with instructions on contributory negligence, virtually amounted to peremptory instructions to find for defendants in the Johnson case, at least, as it is admitted that Johnson did not stop. These instructions were in sharp conflict with other instructions given to the effect that Johnson was not required as a matter of law to stop. The jury refused to follow those defendants' instructions.

The rule to be applied here is stated in Soda v. Marriott, 118 Cal.App. 635, 5 P.2d 675, 678, as follows:

“The giving of instructions which are contradictory in essential elements may warrant the reversal of a judgment, for the reason that it is impossible to determine which charge controlled the determination of the jury. Chidester v. Consolidated People's Ditch Co., 53 Cal. 56; Buttrick v. Pacific Elec. Ry. Co., 86 Cal.App. 136, 260 P. 588; Gaster v. Hinkley, 85 Cal.App. 55, 258 P. 988; Noce v. United Railroads, 53 Cal.App. 512, 200 P. 819.” See, also, Akers v. Cowan, 26 Cal.App.2d 694, 80 P.2d 143; Ferguson v. Nakahara, 43 Cal.App.2d 435, 110 P.2d 1091; Pierce v. United Gas & Electric Co., 161 Cal. 176, 118 P. 700; Starr v. Los Angeles Railway Corp., 187 Cal. 270, 201 P. 599.

As the verdicts may well have been based on acts or omissions of defendants which were erroneously defined in the instructions as negligent as a matter of law, we cannot form the opinion that the patent errors in the instructions did not result in a miscarriage of justice.

Were it necessary to do so, we might be constrained to rely upon the decision of the Supreme Court of the United States in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484. There that court, in invoking the due process of law clause of the Fourteenth Amendment to the Constitution of the United States, said:

“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. It may be added that this is far from being a merely academic proposition, as it appears, upon an examination of the original record filed with this Court, that the State's attorney upon the trial emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses. It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld. * * *The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.”

While it may be true that the plaintiffs, particularly Hopkins, in good morals might be entitled to recover, still the defendants should be entitled to a fair trial. This should require a reversal of both judgments so that the reciprocal duties of due care resting on each party be properly defined and the jury be permitted to determine the liability of defendants, if any, under proper and established rules governing cases of this nature.

The judgments are reversed.

MARKS, Justice.

BARNARD, P. J., and WEST, J. pro tem., concurred.