MALLETT v. SOUTHERN PAC CO

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District Court of Appeal, Third District, California.

MALLETT v. SOUTHERN PAC. CO. et al.†

Civ. 5674.

Decided: February 16, 1937

George R. Freeman, of Willows, and R. C. Colombe, of Red Bluff, for appellant. Clair Engle, of Corning, and Carter & Barrett and Daniel S. Carlton, all of Redding, for respondent.

The Southern Pacific Company has appealed from a judgment of $8,259.25, which was rendered against it in a railroad crossing casualty which occurred in the nighttime. The plaintiff drove her automobile into a gondola car which blockaded the crossing in the town of Corning. The crossing was very dark at that time, and she failed to observe the car in time to avoid the collision. The crossing was not lighted. No warning of the presence of the car was given. The respondent claims that she was deceived by virtue of the fact that the wigwag signal, which she believed always operated when the crossing was blocked, was not then working. It is not claimed the judgment is excessive.

The Southern Pacific Railroad track runs north and south through the town of Corning. In the vicinity of the depot four parallel tracks are maintained which occupy a space of about 80 feet in width. A short distance south of the depot Solano street crosses the railroad tracks at a right angle. That street is paved and is approximately 60 feet in width. The railroad right of way at this crossing is 2 or 3 feet above the normal grade of Solano street. Beginning at a point about 120 feet westerly of the railroad right of way, Solano street approaches the tracks at an upward grade of from 1 1/4 per cent. to 2.91 per cent., the steepest portion being just before the railroad right of way is reached. The crossing is not lighted. The nearest electric light to that crossing is situated at the hotel corner on Solano street 160 feet away. Approaching from the west, the first track to be reached is called the “House Track.” Within a few feet thereof the main track parallels it on the east. Immediately beyond the main track there are two other parallel tracks. Between these last two tracks, at a point about 6 feet southerly of the south line of Solano street, an automatic wigwag signal device is maintained.

The plaintiff lived in Corning west of the railroad track. For several years she had maintained a restaurant or lunch counter near Solano street adjacent to the railroad right of way on the easterly side thereof. For more than two years she had crossed the tracks on Solano street almost daily. She was familiar with that crossing, and with the electric wigwag system which is maintained at that point. She believed that wigwag system always operated when a train was either crossing the street or stationary thereon, by the constant swinging of a red lamp and the ringing of a bell. The defendant's yard foreman testified the wigwag was supposed to continue to operate until the train had passed the crossing. The automatic wigwag system does not operate the same with respect to both north and south bound trains. When a train is traveling south, the wigwag begins to operate when it reaches a point 1,700 feet north of the crossing and continues to operate until the last car has passed a point 17 feet southerly of Solano street. But, when a north bound train reaches a point 1,350 feet south of the crossing, the wigwag begins to operate, and the red lamp ceases to swing and the bell fails to ring when the last car reaches a point 31 feet south of that crossing. The plaintiff was not aware of that difference in its operation. She believed the wigwag continued to operate all the time that either a north or a south bound train was traveling or stationary within the prescribed zone. She was deceived by this lack of uniformity of the system.

At 4 o'clock on the morning of March 17, 1934, the plaintiff left her home west of the railroad track and proceeded easterly along Solano street to commence the preparation for her breakfast at the restaurant or lunch counter east of the station. She was alone and drove her Ford coupé, which was in good mechanical condition. Her headlights were burning. Just prior to her arrival at the track, a freight train consisting of an engine, three box cars, a low gravel gondola car, and a caboose, traveling north, had stopped at the station. She was not aware of the presence of the train. The gondola car blocked the crossing of Solano street. The caboose stood immediately south of the crossing, but it had passed the point at which the wigwag ceased to operate. The red lamp was not swinging and the bell was not ringing. The gondola car stood only seven and a half feet above the track. The side or box of the gondola car extended downward to a point about 3 feet above the track. Below the gondola box, at either end of the car, there was an iron lattice which in the darkness was not as readily observed as though it presented a solid surface. As the plaintiff approached the track she looked and listened for a train, but neither heard nor saw one. She was not expecting a train at that time in the morning. The rear lights on the caboose could not be seen by her. The evidence is conflicting as to whether there were side lamps on the caboose. The plaintiff saw none. It is reasonable to believe that as she ascended the slight grade to the track her headlights first overshot the box of the low gondola car, and, when she stopped her automobile, as she did, 15 feet from the car, her headlights undershot the gondola box and she failed to see it. She listened for the wigwag bell and heard none. She then proceeded on her way, attaining a speed of from 10 to 15 miles an hour, when she suddenly caught a glimpse of the car directly ahead of her. She was, however, unable to stop her machine. She swerved to her left and struck the car with great force, wedging her automobile under the gondola car. She received serious personal injuries as a result of the collision. She was taken in a senseless condition into the railway station, where a physician soon came to attend her. This suit for damages was subsequently instituted. The cause was tried with a jury. A verdict was returned in her favor. Judgment was rendered accordingly. From that judgment the defendant has appealed.

The appellant contends that the evidence fails to support the implied findings of the jury and judgment to the effect that it was guilty of negligence in blocking the railroad crossing; and asserts that the evidence affirmatively shows the plaintiff was guilty of contributory negligence, and that the court erred in refusing to grant the defendant a new trial on the ground of newly discovered evidence to the effect that plaintiff was intoxicated at the time of the accident.

We are of the opinion the evidence supports the implied findings and judgment that the defendant was guilty of negligence which proximately caused the accident and that the plaintiff was free from contributory negligence. It is true that a railroad crossing is itself a warning of danger from either moving or stationary cars. Common knowledge of the movements of trains will ordinarily charge individuals with the information that they are likely to encounter railway trains in crossing the tracks. Koster v. Southern Pacific Company, 207 Cal. 753, 279 P. 788. In the absence of circumstances which render a railroad crossing peculiarly dangerous, a company will not ordinarily be held liable for negligence merely because a crossing is temporarily blockaded in the nighttime or in a dense fog by car without supplying special lights or a watchman to warn the drivers of vehicles on the highway, provided the act is not in conflict with a city ordinance or a statute. Dunlap v. Pacific Electric Railway Co., 12 Cal.App.(2d) 473, 55 P. (2d) 894, 895; Baldwin v. Pacific Electric Railway Co., 208 Cal. 364, 281 P. 380.

In the Dunlap Case, supra, which is relied upon by the appellant, the opinion cites with approval the case of Mabray v. Union Pac. R. Co. (D.C.) 5 F.Supp. 397, and states the following: “It was held that a railroad company has a right to occupy a crossing in the conduct and operation of its business, and that such obstruction is in itself notice of danger, so that the railroad company is not bound to give any further warning; and that, after a train has reached a crossing, the duty of a flagman ends as to that train, since then the train itself is a sufficient warning.”

It is further said in the Dunlap Case: “No question of the giving of a warning of the approaching train is here involved, because at the time of the accident the engine had passed the crossing and was several hundred feet north thereof. ‘All crossing signals are intended to protect the traveler against approaching trains and have been so regarded by our courts.”’

The preceding language was used in the Dunlap Case in affirming a judgment which was rendered against the plaintiff. However, it does not appear in that case that the appellant ran her automobile into a stationary train which was blockading a railroad crossing, relying upon the ringing of an automatic bell to warn her of an obstructed condition of the crossing, or that she was deceived by the silence of the bell into believing that the crossing was unobstructed. It does appear in the Dunlap Case that there was an automatic wigwag signal which was maintained at the crossing, and that “at no time did he (the driver) see any lights or see any wigwag working.” But it neither appears in that case that the driver was deceived by the failure of the automatic device to operate in a uniform manner nor that he relied upon that signal as a warning.

Whatever may be the purpose of maintaining an automatic wigwag signal at a railroad crossing, even though it be intended to merely warn travelers of the approach of trains, common justice will demand that it shall be so constructed and maintained that it will not lure them into danger. It follows that a company which does maintain such a defective system will be held liable for injuries sustained as the result of those imperfections, regardless of whether the system was designed to warn travelers of the approach of trains rather than to inform them of the danger from stationary cars which block the crossings. It is true that ordinarily the presence of a train which is stationary across a public highway is a sufficient warning of danger to a traveler who sees it, or who by the exercise of ordinary care will be presumed to have seen it. But if, through no fault of the traveler, the train is not observed, and he is injured by relying upon and reasonably acting in compliance with the signals of a system known by the company to be defective, the company will be liable therefor. When railroad crossing signals are maintained by a company, even though the law does not require them to be installed, the public has a right to rely upon the exercise of reasonable care on the part of the railroad company, to keep them in good repair and in efficient working condition. Wyseur v. Davis, 58 Cal.App. 598, 209 P. 213; 52 C.J. 201, § 1791.

In the authority last cited it is said: “If signals are provided, although not required by statute, the public has the right to rely thereon, and the company must use reasonable care to keep them in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace.”

In the present case the plaintiff was familiar with the Solano street crossing of the railroad track, for she had used it almost daily for more than two years. She knew of the wigwag signal system which was maintained at that crossing, and relied upon her belief that it operated uniformly by the constant swinging of a red light and the ringing of a bell until the trains had cleared the crossing traveling either north or south. It is undisputed that the system did not so operate. It was defectively constructed so that it did operate until the crossing was cleared for a south bound train, but unfortunately it ceased to operate for a north bound train when the last car passed a point 31 feet southerly of Solano street crossing. The plaintiff was ignorant of that fact. The company knew it to be true. The train in question stopped at a point so that the gondola car blocked the crossing, yet the caboose had cleared the zone in which the system operated, and the signal ceased to work. It was very dark in the vicinity of the crossing. The plaintiff cautiously looked and listened for the presence of a train as she approached the tracks. She stopped when her machine reached a point 15 feet from the nearest track, but she saw no train. She testified that she listened for the bell of the wigwag signal and did not hear it. It is conceded it was not ringing on account of the peculiar arrangement of the system. She looked for the red light and did not see it, for the reason that it was not swinging. Then, assuming that it was safe to do so, she proceeded to pass the tracks and the accident occurred. Under the circumstances of this case, the questions regarding the defendant's negligence and the plaintiff's freedom from negligence were problems for the determination of the jury. There is adequate evidence to support the implied findings and judgment upon those issues.

This case, which is dependent upon the plaintiff's reliance upon what may be deemed to be a defective automatic signal system, should be distinguished from those cases upon which the appellant relies in which the complainants were injured with or without their own contributory negligence by colliding with railroad cars which blocked a crossing merely because the companies were not required to furnish special lights or watchmen to warn travelers of the danger at the crossings. In the case of Louisville & N. R. Co. v. Mahoney, 220 Ky. 30, 294 S.W. 777, 779, it is said in that regard: “Possibly the light in the wigwag signal was not intended to give light to a traveler upon the highway so that he could see a train upon the track, but it was intended to give a warning signal to travelers upon the highway that the crossing was then occupied by a train or was about to be occupied by a train then approaching, and to warn the approaching traveler of the danger of attempting to pass over the crossing, and a traveler upon the highway, who was acquainted with the fact that a wigwag signal bell and light was regularly maintained at that crossing, had a right to rely upon the efficiency of that signal to warn him of the approach of the train to the crossing and of the train upon the crossing, when he could not see and know of the presence of the train at or about the crossing,”

The court did not err in denying defendant's motion for a new trial on the ground of newly discovered evidence. The evidence contained in the affidavits which were presented on that motion with relation to the plaintiff's alleged intoxication is conflicting. The granting of a new trial rests largely in the discretion of the trial judge, and his determination of that motion will not be disturbed on appeal except for a clear abuse of discretion. When there is a substantial conflict of evidence in the affidavits which are presented regarding the issue which is involved in the motion for a new trial, the ruling of the trial court will not be disturbed on appeal. Kataoka v. Hanselman, 150 Cal. 673, 89 P. 1082; Wessel v. Cazaretto, 109 Cal.App. 390, 293 P. 111; Miles v. Miles, 77 Cal.App. 219, 246 P. 143; 20 Cal.Jur. 81, § 58.

There is an abundance of evidence upon which the court was warranted in determining that the plaintiff was not intoxicated at the time of the accident. It appears she left her restaurant about 10 o'clock the night of the accident. She accompanied a friend by the name of Mrs. Mallett to Camp Olive, where they drank one or two glasses of beer. She then drove home and went to bed, where she remained until about three or half–past three o'clock in the morning, when she arose and started to drive to her place of business. These circumstances are corroborated by other affiants. But more important upon that issue of intoxication is the fact that the plaintiff was taken in an unconscious condition directly from her machine into the defendant's depot where she was surrounded by some of defendant's employees none of whom suggested that they detected the presence of the fumes of liquor or any indication that she was intoxicated. Moreover, Dr. Arthur H. Meuser, a reputable Corning physician, who attended her immediately after the accident occurred, averred that:

“Affiant particularly examined said plaintiff to determine whether or not she was intoxicated or was under the influence of intoxicating liquor, or had recently drunk intoxicating liquor; that affiant smelled plaintiff's breath at said time, talked with her, and observed her for the purpose of determining whether or not there was any evidence whatever of intoxication, * * * and affiant did not detect any odor of alcoholic liquor on plaintiff's breath, and saw no other evidence whatever that plaintiff was intoxicated or was under the influence of intoxicating liquor, or had recently drunk intoxicating liquor, and affiant is of the opinion * * * that plaintiff was not then intoxicated or under the influence of intoxicating liquor, or had recently drunk intoxicating liquor.”

The judgment and the order are affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

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