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District Court of Appeal, Second District, Division 3, California.


Civ. 14090.

Decided: March 09, 1944

Paul Blackwood and Samuel P. Young, both of Los Angeles, for appellants. Frank Karr, C. W. Cornell, and O. O. Collins, all of Los Angeles, for respondent.

Plaintiffs are the minor children of Elmer J. Lund and Florence Boyd Lund; they brought the present action against Pacific Electric Railway Company to recover damages for the death of their mother, who was riding with her husband, father of plaintiffs, in an automobile which was struck by an electric car of the defendant as it was crossing defendant's tracks located on a private right of way at the intersection of Redondo Boulevard, in the City of Los Angeles. Redondo Boulevard extends north and south and is a paved street 50 feet wide, except where it intersects defendant's right of way, which extends east and west, at which point the boulevard is 80 feet wide. Defendant's private right of way is 50 feet wide and runs between two parallel roadways on either side, which are known as San Vicente Boulevard. The railway line is a double track road. The right of way is used exclusively for railway purposes and is separated from the adjoining roadways, as shown upon a photograph of the location hereinafter appearing. There are, therefore, six entries into the intersection, two on Redondo Boulevard and four on San Vicente. At each of these was a boulevard stop sign; at the northwest corner of the right of way there was a railroad cross–arm sign and there was an automatic signaling device or wigwag at the southeast corner of the right of way at the intersection. The rails of each set of tracks are 5 feet apart. The distance between the east and west bound tracks is 9 feet. At about noon of a clear day Mr. Lund was driving his car westerly on San Vicente, on that part of San Vicente which lay south of the right of way, and within a few feet of the north curb. He made a boulevard stop at Redondo, then turned to the right or north to cross the tracks. His automobile was struck by an interurban car of defendant traveling west on the north set of tracks. After making the boulevard stop Mr. Lund, according to his testimony, started in low gear, had shifted to high, and was going 8 or 10 miles an hour at the time of the accident. He testified that he looked several times to see if cars were approaching on the tracks, saw none, heard no bell or whistle, that while stopped at the intersection he could not see the wigwag overhead, and that he did not hear the bell of the wigwag, although he was listening for it. There was evidence from which it might have been found that the car was traveling at 30 or 35 miles an hour and that the motorman saw the automobile but did not keep his attention on it exclusively after first seeing it and was looking for traffic that might appear from any direction. He testified that he saw it stop at the boulevard stop, watched it for a couple of seconds, took his eyes off it when the electric car was about 100 feet from the crossing, and did not again see it until it was too late to stop the car.

Of the points urged for reversal, we shall give attention first to the claim that the court erred in giving instructions which made applicable to the conduct of the motorman and the driver of the automobile the stop, look and listen rule of the steam railroad cases, instead of the rules which pertain to the operation of street cars. We are unable to find that the court erred in concluding that the evidence made the steam railroad rule applicable. There is no fixed, all–inclusive rule of law by which it can be determined whether a given electric railway falls in one class or the other. In the case of an electric suburban or interurban line the cars, whether operated singly or in groups of two or more, are subject to one rule or the other, depending principally upon the character of the particular district through which they are traveling, and whether the tracks are laid on a thoroughfare adapted to general traffic uses or upon a private right of way designed and used exclusively for railway purposes. The lines of the Pacific Electric Railway radiate in all directions from the City of Los Angeles to surrounding cities. As they leave their several stations in Los Angeles they are in practical effect street cars and to be operated as such. Each interurban car or group of cars at some point or other becomes in effect a train, a term which may be used to identify them with steam or Diesel operated trains of the steam railroads. In cases such as this the court must determine from the facts of each case whether the conditions at the place of the accident call for the application of one rule or the other. Riney v. Pacific Electric R. Co., 1919, 45 Cal.App. 145, 187 P. 50; New York L. Oil Co. v. United Railroads, 1923, 191 Cal. 96, 215 P. 72; and Cash v. Los Angeles Ry. Corp., 1935, 6 Cal.App.2d 738, 45 P.2d 280, were cases in which the steam railway rules were held to apply under conditions quite similar in their essential features to those of our case, in respects in which the railways involved differed from street car lines. Defendant's private right of way on which the accident occurred extends for long distances easterly and westerly from its intersection with Redondo Boulevard. It is an old line, upon which interurban trains have passed for many years. The conditions that existed at the time and place of the accident are well illustrated by photographs, which were in evidence, one of which we have selected for use in this opinion. It is inscribed “Looking easterly, camera 30 feet south from north track.” There was a railway cross–arm warning at the intersection and an automatic signaling device, both of which are common forms of warning at railway intersections. The picture speaks for itself and appears to give a fair representation of the scene. We are satisfied that upon the evidence before it, which included numerous pictures, the trial court did not err in applying to the conduct of the motorman and Mr. Lund the law of the steam railway cases.

Plaintiffs offered in evidence an ordinance of the City of Los Angeles regulating the speed of street cars in the city, which provided in part as follows:

“(a) The operator of any street car shall not drive said street car at a speed exceeding the following: [Here certain speeds were enumerated.]

“(b) The provisions of this section shall not apply when a street car is being operated upon a private right–of–way which is effectively protected from vehicular traffic.”

The evidence was excluded upon defendant's objection, and the ruling is assigned as error. Defendant's cars and trains operating on its right of way where the accident occurred were not street cars within the meaning of the ordinance but interurban electric railway trains. Simoneau v. Pacific Electric R. Co., 1911, 159 Cal. 494, 115 P. 320. The ordinance was properly excluded. Since section (b) also applies only to street cars, the question is not presented here whether defendant's right of way at the scene of the accident was effectively protected from vehicular traffic.

It follows from the fact that the ordinance regulating the speed of street cars was inapplicable, that the court did not err in instructing the jury that it was lawful for defendant to operate its cars at any speed it saw fit, consistent with ordinary care, and that it was for the jury to determine whether a given rate of speed was a negligent one and that the answer depended upon all of the surrounding circumstances.

The jury were instructed fully as to the duties of Mr. Lund in approaching the railway tracks and as to the right of the motorman to assume, until he had reason to believe to the contrary, that Mr. Lund would proceed in the exercise of due care. It was also stated that the failure of Mr. Lund to stop, look and listen or to heed the warnings of the approach of a car or train would constitute negligence upon his part and that if it appeared that he looked and did not see what was in plain sight, or if he listened and did not hear what was plainly to be heard, there would be an irreconcilable conflict, or the evidence would have shown that Mr. Lund was negligently inattentive. The determinative issue in the case was whether Mr. Lund's negligence was the sole proximate cause of the accident. The motorman had a right to assume, until there was reason for him to believe the contrary, that Mr. Lund would drive his car with ordinary care, and it was proper to instruct the jury as to what would constitute ordinary care upon his part. These instructions stated the law correctly, as far as they went, and it was not improper to give them. But plaintiffs contend that the only purpose for which evidence tending to show Mr. Lund's negligence could be considered was to aid in determining whether the motorman was negligent (Krupp v. Los Angeles Ry. Corp., 1943, 57 Cal.App.2d 695, 135 P.2d 424), and that the court erred in failing to give an instruction that evidence of Mr. Lund's negligence was received for that limited purpose. Plaintiffs also contend that the court erred in failing to instruct the jury that the negligence of Mr. Lund could not be imputed to them. No such instructions were given. Plaintiffs did not request specific instructions stating the foregoing principles, but they did request an instruction, which the court refused to give, that if Mr. Lund was negligent and the railway company was also negligent, and if their combined negligence was the sole proximate cause of the accident, the jury were not to compare the negligence of one with that of the other and should return a verdict for plaintiffs. This instruction should have been given, for reasons stated in Krupp v. Los Angeles Ry. Corp., supra, and Renowden v. Pacific Electric R. Co., 1925, 73 Cal.App. 383, 238 P. 785, but we are of the opinion that the failure to give it was not reversible error. In the Krupp and Renowden cases the plaintiffs were guests of the drivers of the respective automobiles involved in the collisions; here the plaintiffs were the children of the driver. In such cases the instructions should make it clear that the negligence of the driver is not to be imputed to the plaintiffs or, in other words, that the plaintiffs are entitled to recover if concurrent negligence of the driver of the automobile and the operator of the street car or train are found to be proximate causes of the accident. We are in agreement with the holding in the Krupp and Renowden cases, where it was held that the failure to give such instructions tended to confuse the jury as to the purposes for which evidence of the driver's negligence was received and as to the effect of such negligence upon the ultimate outcome of the case. We do not believe that the holding of the court in Ackerman v. Griggs, 1930, 109 Cal.App. 365, 293 P. 115, relied upon by respondent, is in conflict with what was said in the Krupp and Renowden cases. In that case it was held to have been unnecessary for the court to instruct in an automobile collision case that the negligence of plaintiff's father, with whom she was riding, could not be imputed to plaintiff. The stop, look and listen rule was not involved, as it was in the Renowden case, where the emphasis placed upon that rule was held to necessitate a further instruction negating the application of the imputed negligence rule, and in the Ackerman case there was no instruction as to the “mutual fault and negligence of the defendant and of the plaintiffs” such as that given in the Krupp case [57 Cal.App.2d 695, 135 P.2d 425]. There were additional reasons in the Ackerman case why the failure to give the instruction on imputed negligence would not have confused the jury. It appears from the briefs in that case that the jury were instructed in a formula instruction that the verdict must be for plaintiff if it was shown by a preponderance of the evidence that defendants were negligent and that their negligence was a proximate cause of the accident. Furthermore, the evidence was such as to indicate that the verdict was not the result of confusion on the part of the jury, for the court said (109 Cal.App. at page 367, 293 P. at page 116): “It must be conceded that the evidence unmistakably supports the jury's verdict for the defendants, and that the sole and proximate cause of the accident was the negligent and reckless driving of plaintiff's father. Under such circumstances the judgment must be affirmed, unless the errors assigned are found to be prejudicial.”

We would direct a reversal in the present case if we believed it to be probable that the jury were confused as to the determinative issues in the case. In deciding whether there is reason to believe that the verdict was reached on account of confusion on the part of the jury, we must consider the instructions as a whole and also the undisputed evidence in the case. The jury were instructed that if they found defendant to have been guilty of negligence and “that such act of negligence was the proximate cause of the accident or that such act of negligence combined with negligence on the part of Mr. Lund was one of the proximate causes of the accident” and that plaintiffs' mother received injuries in the accident which resulted in her death, plaintiffs would be entitled to a verdict against defendant. This instruction was poorly phrased but its meaning would seem to be clear. The jury were further instructed that if they found that the accident was caused solely by the negligence of Mr. Lund, plaintiffs could not recover, and this latter instruction was repeated. These instructions were not the equivalent of instructions to the effect that Mr. Lund's negligence could not be imputed to the plaintiffs and that plaintiffs could recover if the jury found that the concurrent negligence of Mr. Lund and defendant were proximate causes of the accident. The instructions should have been more complete but the question is whether they were inadequate to such a degree as to enable us to say that there is reason to believe that the jury were confused as to the governing rules of law and that the verdict might have been different had the instructions covered the case more adequately. These questions cannot be answered from the instructions alone and in entire disregard of the evidence in the case, especially the evidence tending to show negligence on the part of defendant. That is to say, the conclusion that the jury were probably misled by the instructions would be reached more readily in a case where there was persuasive evidence of the defendant's negligence than in a case where there was but slight evidence of such negligence. The instant case differs materially in its facts from the Krupp and Renowden cases. In the former case there was evidence from which it could have been reasonably found that the automobile was standing still on or very close to the street car tracks when the street car was a quarter of a block away and that the street car could have been stopped in time to avoid the accident, although there was evidence to the contrary. In the Renowden case the automobile in which plaintiff was riding was struck by an electric train which was backing up across an intersection at a speed of about 20 miles an hour. If the evidence tending to show negligence on the part of the motorman in the instant case had been as strong or anywhere near as strong as it was in the Krupp and Renowden cases, we would be persuaded that the failure of the court to state more exactly and clearly the plaintiffs' right to recover for the concurrent negligence of Mr. Lund and the railway company had probably led to confusion on the part of the jury and had resulted in a miscarriage of justice.

We are thus brought to an examination of the evidence in the case in order that we may determine whether there was prejudicial error in the giving or refusal of instructions. We must bear in mind that the court did not misstate the law in any particular nor omit entirely the statement of any pertinent principle of law. The question is: can we say that the jury were confused by the instructions or that it is reasonable to suppose that under more complete instructions the verdict would have been in plaintiffs' favor.

We have mentioned the fact that Mr. Lund testified that he heard no bell or whistle and did not notice the wigwag and that he looked in both directions along the tracks several times and saw no cars approaching. It should be noted also that he did not suddenly come upon the tracks unaware of their presence, for he had been driving for some distance on San Vicente parallel to the tracks, which were not only in plain sight but conspicuously located, with a fence separating defendant's right of way from the street. There was at most but slight evidence of negligence upon the part of the motorman, consisting as it did of the fact that Mr. Lund and another witness testified that they heard no whistle or bell and that the electric car was traveling between 30 and 35 miles an hour. While this is not an unusual speed for electric trains traveling on a private right of way, and the statements that the witnesses did not hear a whistle or bell is purely negative evidence, we are not inquiring as to its legal sufficiency to support a finding of negligence in plaintiffs' favor if such had been made. Unquestionably the jury must have believed that Mr. Lund was paying but slight attention to his surroundings in either listening or looking for danger, for he scarcely could have looked toward the east with any care at all without seeing the approaching car or listened without hearing the noise that such cars make when they are traveling at anything like a speed of 30 miles an hour. In Ellerman v. Pacific Elec. R. Co., 1935, 7 Cal.App.2d 385, 47 P.2d 521, an interurban electric car traveling at a rate estimated variously at between 30 and 50 miles an hour struck an automobile which was traveling across a railway grade crossing at about 30 miles an hour. The court affirmed a directed verdict in favor of defendant. After pointing out that the motorman had a right to assume that the automobile driver would slow down or stop as he approached the tracks and that no duty devolved upon the motorman to slow down or stop his train until, in the exercise of ordinary care, he observed that the automobile was not being stopped to let the street car go by, the court said (7 Cal.App.2d at page 388, 47 P.2d at page 522): “If there is any negligence in the case attributable to the motorman, then every interurban train approaching a grade crossing has to be kept under the same control as an automobile; and if an automobile happens to be approaching at a good clip, the motorman must not proceed to cross until he is satisfied the driver of the automobile will not attempt to ‘beat him to it.’ We do not think this is the law.” But plaintiffs earnestly insist that they were entitled to recover under the doctrine of last clear chance. They requested instructions which stated that doctrine and the court declined to give them. This ruling is assigned as error and we shall review the evidence briefly in the light of that contention. This was not one of the common collisions which occur at points where highways cross railway tracks. Here there were six entries to the intersection, two for vehicles going west on San Vicente, two for those going east, and two for vehicles approaching on Redondo Boulevard. The motorman admitted having seen Mr. Lund as he stopped at the Redondo intersection before turning across the tracks and to having watched him for a brief time before looking toward other points from which vehicles might have been approaching. He testified that he did not observe the Lund car in a position of danger until it was too late to bring his car to a stop, and that he then immediately applied the brakes. It must be granted that Mr. Lund was unaware of his danger until the car was upon him, but that fact would not have been known to one who was watching the Lund car until it was seen to be traveling the short distance that took it from a position of safety into one of danger. We are aware of no case in California in which the doctrine of last clear chance has been held to apply to a collision between a motor vehicle and a steam or interurban electric railway under facts resembling those we have related. All of the cases cited by plaintiffs are distinguishable upon the facts. An essential element of the last clear chance doctrine which is entirely missing is evidence from which it could be reasonably determined that any appreciable time elapsed while Mr. Lund was traveling from a position of safety just short of the tracks to the point of the accident. The evidence was that there were marks of the collision in the middle of the west bound tracks. From this point it was only 16 1/2 feet to the southerly rail of the east bound tracks, or approximately one and a half times the length of a medium sized automobile. At their respective speeds the automobile could have been stopped almost instantly, but not the train. The car, with brakes set, shoved the automobile 132 feet before coming to a stop. The automobile was a two–door, four–passenger car and it was struck on the door on the right–hand side. We do not see how it could be said that when Mr. Lund drove slowly around the corner and approached the tracks, where he would be expected to look for cars while still in a position of safety, it would have been apparent to the motorman that he was in a position of danger and unaware of it, until he had advanced onto the tracks. The evidence would not have supported a finding by the jury that the motorman would have had the last clear chance to avoid the accident even if he had been watching the automobile at the very instant when it started across the tracks. If the undisputed facts of the instant case justified the application of the doctrine of last clear chance, it would be difficult to imagine a case of a collision between a train and an automobile at a railway intersection where the doctrine could not be invoked. The law is that it applies to such accidents only under unusual circumstances. The clear and thorough discussion of the doctrine in Johnson v. Sacramento Northern Ry., 1942, 54 Cal.App.2d 528, 129 P.2d 503, is a complete answer to appellants' contention on the point.

We find no reason to believe that the jury acted under any misapprehension as to the principles of law by which they were to be guided in arriving at their verdict, but upon the contrary, it appears to us that they reached a proper verdict upon the evidence in the case. As we have said, the jury were not misdirected and we are unable to believe that they were confused or that they were not sufficiently advised as to the law by the instructions that were given.

Plaintiffs cite numerous remarks of the trial judge in the presence of the jury which they contend constituted misconduct warranting a reversal of the judgment. We have considered the conduct of which plaintiffs complain and find it unnecessary to discuss it in detail. The record shows that the judge talked freely and at times out of turn, but his remarks were not such as have heretofore been regarded as misconduct and we cannot conceive that the case of plaintiffs was prejudiced by anything which the judge said or did.

Furthermore, no objection or exception was noted at the trial and the complaint of alleged misconduct cannot be raised for the first time on appeal. Karwoski v. Grant, 1938, 30 Cal.App.2d 171, 178, 85 P.2d 944.

The judgment is affirmed.

SHINN, Justice.

DESMOND, P. J., and PARKER WOOD, J., concur.

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