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District Court of Appeal, First District, Division 2, California.


Civ. No. 12451.

Decided: November 08, 1943

William E. Ferriter and James C. Purcell, both of San Francisco, for appellant. Arthur B. Dunne and Dunne & Dunne, all of San Francisco, for respondents.

The plaintiff sued to recover for personal injuries received in a collision between the truck he was driving and a Southern Pacific Company locomotive at the intersection of the Southern Pacific Company's tracks and Berry Street in San Francisco. In his complaint he named as defendants the Southern Pacific Company, a corporation, and the engineer, and the fireman who operated and drove Locomotive No. 2376. He appeals from a judgment of nonsuit granted on defendants' motion at the close of his case. It should be noted that all conflicts in the statement of facts have been resolved in favor of plaintiff and appellant, pursuant to the well recognized rule of review on appeals from judgments of nonsuit. The sole question presented by the appeal is whether the lower court was correct in determining that plaintiff was guilty of contributory negligence as a matter of law, conceding for the purposes of the appeal that defendants' negligence was sufficiently proved, it being predicated on the failure of the locomotive personnel to sound a warning and the absence of the flagman normally stationed at the crossing to warn approaching cars. The locale of the accident must be depicted in detail in order to understand the grounds of plaintiff's appeal which consists in a plea for the relaxation of the so–called “stop, look and listen” rule in the circumstances of the particular case.

The plaintiff was a truck driver who crossed the Southern Pacific Company's tracks at Berry Street from two to twenty times a day and had been doing so for many years. Therefore he was thoroughly familiar with the crossing, the numerous switching operations taking place there daily, and the presence of the flagman to warn approaching cars when a train would actually cross Berry Street. On the morning of the accident he drove his ready–mix cement truck south on Seventh, looked to his left about 50 feet from its intersection with Berry Street at the Southern Pacific Company's tracks which paralleled Seventh Street at that point. Seventh Street approaches the tracks at a tangent about 100 feet before the Berry Street intersection and then parallels the tracks for several blocks. Therefore by looking to his left plaintiff could not see the locomotive which hit him, without looking over his left shoulder backwards to see the train about 50 feet behind him coming on the curved tracks. He slackened his speed in preparation for the turn and crossing the tracks and shifted to a lower gear. He looked for the flagman before he crossed, saw none, and proceeded onto the southbound mainline tracks where he was struck by a backing locomotive on the left front side of the engine and cab of the truck. The locomotive was an unattached commuter engine which was backing to the round house.

The plaintiff contends that even though he did not stop, look and listen at the crossing he was not contributorily negligent as a matter of law. He rests his position on the following facts and inferences to be drawn from facts appearing of record: The place at which the accident occurred is a congested mercantile district with commercial vehicles constantly crossing the railroad tracks. There are five railroad tracks at the Berry Street crossing and the start of a split up into six tracks. The four most easterly tracks are used constantly for switching operations of making up trains, both freight and passenger. If an engine is seen approaching the intersection of Berry Street, it still might stop short and reverse itself to go back and pick up other cars on other tracks. The engine which struck plaintiff was a single unattached backing engine, traveling on the south–bound main line track, the track which was closest to him as he started to cross. Therefore the plaintiff asserts that in view of these facts, even if he had looked and had seen the approaching engine, the jury might reasonably have concluded that he could have crossed because the flagman was not present, his presence being the only means of knowing whether the approaching train would cross Berry Street or not. Although not mentioned by appellant, his view is further fortified by the fact, which we must accept on a nonsuit, that neither the whistle nor the bell on the engine sounded a warning that the engine would continue across Berry Street. He urges that to require all commercial traffic to stop while an engine was in sight would be an undue burden on traffic, which burden the railroad recognized. In the light of the switching operations the railway had placed a flagman at each side of the crossing instead of automatic devices.

The defendants contend that the stop, look and listen rule is not relaxed here because although a guarded crossing, the view was unobstructed. They assert that it nowhere appears of record that switching operations take place on the main line tracks and in fact no switching operations do take place on the main line tracks. There is no evidence in the record as to whether switching operations do or do not take place on the main line tracks. They point out that there is a great difference between a switching engine and the through train engine which caused the accident. This difference does not appear of record. But they ask the court to take judicial notice of this difference. They argue that plaintiff, assuming his knowledge of railroad switching operations over these tracks, would have recognized this difference had he looked. They point to plaintiff's testimony that he knew these single engines of commuter trains backed up along the south bound main line tracks to the round house and that he knew the first two tracks he was to cross were the main line tracks.

There is testimony in the record which must be accepted for the purposes of a nonsuit that there were flashing mirrors across the tracks which shined in plaintiff's eyes in the split second before the accident occurred which flashes blinded him. The plaintiff testified that he stopped the minute the flash blinded him and was immediately struck by the engine. There seems to be no merit in the arguments on either side concerning the weight to be given this evidence. Defendants argue that it saved his life because the cab of the truck would have been struck squarely had plaintiff not stopped when he did. Plaintiff asserts that the flash blinded him so that he could not see the train or caused him to stop when he could have cleared in front of the engine. Plaintiff's own testimony of immediacy refutes the first argument. Assuming plaintiff's second theory to be true, there is no competent testimony in the record that could connect the Southern Pacific Company with the mirror's flashing. Therefore the nonsuit would have been properly granted as the negligence, if any, of the plaintiff in failing to look for the engine and the negligence of the Southern Pacific Company in failing to have the flagman at the crossing would not have been the proximate cause of the accident.

The plaintiff contends the motion for a nonsuit should not have been granted and that his case should have been submitted to the jury. The defendants reply that the evidence clearly shows the plaintiff was guilty of contributory negligence. They cite and rely on Jones v. Southern Pacific Co., 34 Cal.App. 629, 168 P. 586; Koch v. Southern California Ry. Co., 148 Cal. 677, 84 P. 176, 4 L.R.A.,N.S., 521, 113 Am.St.Rep. 332, 7 Ann.Cas. 795; Wyseur v. Davis, 58 Cal.App. 598, 209 P. 213; Gundry v. Atchison, T. & S. F. Ry. Co., 104 Cal.App. 753, 286 P. 718. The plaintiff replies that this court stated a different rule in Wessling v. Southern Pacific Co., 116 Cal.App. 447, 3 P.2d 22. We think the plaintiff fails to note the difference in the facts. The latter case presented facts showing that the view of the driver of the truck was obstructed. In other words, it rested on an exception to the general rule. The general rule is that when the driver's view is unobstructed before attempting to make the crossing he should look and listen and if necessary should come to a stop. Billig v. Southern Pacific Co., 192 Cal. 357, 362, 219 P. 992. When, as in the instant case, the crossing is guarded by signals or flagmen the quantum of care is less but the driver is still bound to exercise ordinary care for his own safety. 52 C.J. 329. If and when the view of the driver is obstructed the question of negligence generally is a question of fact to be submitted to the jury. Gregg v. Western Pac. R. Co., 193 Cal. 212, 224, 223 P. 553. However, in the instant case there was no claim that the plaintiff's view was obstructed. Under such circumstances Wessling v. Southern Pacific Co., supra, is not controlling.

Chrissinger v. Southern Pacific Co., 169 Cal. 619, 149 P. 175, was an appeal from a judgment based on an order granting a nonsuit. In that case, as in this case, the plaintiff testified that he looked but did not see. On page 624 of 169 Cal., on page 177 of 149 P., the court said:

“In any view of the testimony we are forced to conclude that had plaintiff used the slightest care the accident would not have happened. True it is that we have his own statement that he looked and listened, but did not see or hear the approaching train, but where, as here, the established facts and conditions make it plain that by looking and listening he must have observed the approach of the train, his testimony that he looked and listened, but did not see or hear, is not enough to support a verdict in his favor. Zibbell v. Southern Pacific Co., 160 Cal. 237, 241, 116 P. 513.

“A person approaching a railway track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen. Undoubtedly the question of contributory negligence or freedom from it is ordinarily one for the jury, but where, as here, the standard of conduct is so obvious as to be applicable to all persons, and the plaintiff has failed to measure up to that standard under the circumstances shown, he is not entitled to have his case go to the jury. Hamlin v. Pacific Electric Co., 150 Cal. 776, 779, 89 P. 1109.”

Jones v. Southern Pacific Co., 34 Cal.App. 629, 631, 168 P. 586, is to the same effect.

From the time that the plaintiff drove down Seventh Street and passed King Street had he looked with any care he would have seen the engine backing. The record shows that the engine and its tender were about the only objects in the railway yard comprising a space exceeding one block.

The plaintiff did not stop until he approached and was actually on the track on which the engine was approaching. That act in stopping was not in compliance with the rule to stop, look and listen. The element of stopping as used in that rule is for the safety of the traveler––it means stopping in a place of safety. 52 C.J. 311 “Railroads”, § 1888.

Nothing we have said is in conflict with Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183. That case involved a set of facts showing that at the crossing involved ordinarily the defendants maintained a flagman. At the time of the accident no flagman was there. However, prior to said date a flagman had been present and acting, which fact the plaintiff well knew. As pointed out by the court, at the time of the accident a flagman was not present and the defendant company had placed many obstructions which obscured the view of the plaintiff. It was held that the placing of a flagman on guard was in the nature of an invitation for the public to be guided by and act on the presence or absence of a flagman; it was further held that by such acts the railroad company impliedly invited respondent to cross, and assured him no train was approaching. Later it parked its cars so that plaintiff could not see. Still later, the defendants contended that because plaintiff relied and acted on the appearance of safety created by the defendants, the plaintiff was guilty of contributory negligence as a matter of law. The holding of the case is that the plaintiff was entitled to prove, if he could, all facts and circumstances being considered, that he had by the acts of defendants been entrapped. However, as stated above, in the instant case neither the defendants nor anyone else had placed any obstructions cutting off the view of this plaintiff.

Speaking of the doctrine which we have quoted from Chrissinger v. Southern Pacific Co., supra, the plaintiff argues that such is the rule in rural districts, but that it is not, and should not be, the rule in urban districts. He cites no authority directly so holding, but makes the claim in argument. However, a careful reading of the authorities discloses at once that they may not be so distinguished.

The judgment appealed from is affirmed.


NOURSE, P. J., and SPENCE, J., concur.

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