DOLTON v. GREEN

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

DOLTON v. GREEN et al.

Civ. 14867.

Decided: October 22, 1945

Frank Karr, C. W. Cornell, O. O. Collins, and Malcolm Archbald, all of Los Angeles, for appellants. Claude A. Watson, Bernard Brennan, and Montgomery G. Rice, all of Los Angeles, for respondents.

This action was instituted by plaintiff to recover damages for personal injuries and property damage allegedly sustained as the result of a collision between a Chevrolet pick-up truck driven by plaintiff and an interurban electric car of the defendant Railway Corporation, which was being operated by defendant D. C. Green.

By his complaint, plaintiff alleges general negligence in the operation of the electric car. Defendants' answer denies any negligence in the manner in which the electric car was operated and, as an affirmative defense, pleads contributory negligence on the part of the plaintiff.

The cause proceeded to trial before the court sitting without a jury. By its findings of fact the court determined that plaintiff was free from negligence and that the proximate cause of the accident was the negligence of defendants in the operation of the electric car. Accordingly, judgment was entered in favor of plaintiff against both defendants. A motion for a new trial was denied. From the judgment, defendants prosecute this appeal.

The accident in question happened about eight o'clock on the morning of March 26, 1942, at the intersection of Venice and National Boulevards, in the City of Los Angeles.

The record reflects that National Boulevard is a paved street extending north and south of Venice Boulevard. The latter is also a paved street, extending east and west and is a divided highway, the north and south pavements thereof being separated by the right-of-way of the defendant Railway Company. The property of the private right-of-way is 50 feet wide. Two sets of tracks extend along this right-of-way, the northerly tracks being used by westbound and the southerly tracks by eastbound trains.

By a written stipulation of fact, the nature of the rail operations conducted by defendant Railway Company was thus described: The electric car involved in the accident was engaged in interurban passenger service between Los Angeles and Santa Monica. The rails upon which this operation was conducted extended a distance of 17 miles between the aforesaid points. For about 11 1/212 miles of this total distance, the rails were laid upon a private right-of-way of defendant Railway Company, which was constructed with T rails extending their full height above the ties, the tops of which were level with the ground. Attached to the stipulation is a sketch, from which it appears that for a distance of several miles, both east and west from National Boulevard where the accident occurred, the trains run over a private right-of-way of the Railway Company. Photographs looking along the tracks, both to the east and to the west from National Boulevard, show that the right-of-way extends straight in both directions as far as the eye can see and that there is no obstruction to the view of a motorist looking for approaching trains.

The paved portions of Venice Boulevard and the right-of-way are separated by cement curbings so that vehicular traffic is excluded from the track area except at road crossings, where the pavement of the road is laid flush with the tops of the rails.

Venice Boulevard consists of two separate roadways, which lie on each side of the right-of-way. For convenience, they will be hereinafter referred to as the North and South Roadways of Venice Boulevard. Vehicular traffic moves both east and west on each of these roadways. As a result of this construction, there are six entrances to the intersection of Venice and National Boulevards: two from National and four from Venice. Each of these entrances is posted with a standard boulevard stop sign. A railroad cross arm is located in the southeast corner of the intersection of the right-of-way and National Boulevard, while a standard automatic signalling device, commonly referred to as a wig-wag, is located on a pole at the northwest corner of the intersection of the right-of-way and National Boulvard.

Concerning the circumstances surrounding the collision, plaintiff testified that he had been over this crossing several times prior to the day of the accident and was cognizant of the fact that trains were operated along the tracks. That about eight o'clock on the morning of March 26, 1942, he drove his Chevrolet pickup truck west on the North Roadway of Venice Boulevard toward National Boulevard. He stopped at the stop sign at National Boulevard and then made a ‘broad left-hand turn into National Boulevard across the Pacific Electric tracks.’ In making this left turn, he pulled in behind a brown sedan which was going south on National and followed it at a distance of about 15 feet and at a speed of about 10 miles an hour. Plaintiff testified he continued to follow this brown sedan at the same speed until it suddenly stopped for traffic proceeding east and west along the South Roadway of Venice Boulevard. Plaintiff stopped his vehicle about five feet behind the sedan, at which time he was right in the middle of the tracks on which the accident occurred. He further testified that when he stopped on the tracks he looked and observed the electric car which he estimated was then 200 feet away. He further testified that he looked around to see if he could back up but saw an automobile five feet behind him.

Plaintiff further testified that when he saw the electric car approximately 200 feet away, he formed no opinions as to its speed. The automobile in front of plaintiff remained in the same position up to the time of the collision. Plaintiff testified that the oncoming electric car ‘hit me broadside in the center of the right-hand side of my automobile.’ Regarding the observations made by him of the approaching electric car, plaintiff testified: ‘I saw the train approaching when I made the boulevard stop at the north of stop sign. The train was then beyond the next street which was the average length of a city block west of National Boulevard.’ It was stipulated that the average city block is four to five hundred feet in length. After giving a visible sign of his intention to make a left-hand turn when he was 58 feet from the tracks on which the train was traveling, plaintiff observed it coming toward him. He testified he could stop his truck within 10 to 12 feet and as he was approaching the tracks of defendant Railway Company, he observed traffic moving west on the south side of Venice Boulevard. As we read plaintiff's testimony, it appears that, from the time he observed the electric car when he was stopped on the tracks and the car was some 200 feet distant, he never again looked at it, up to the time of the impact, nor did he at any time form an estimate as to the speed of the approaching car.

Mrs. Thelma Russell, called as a witness by plaintiff, testified that she was walking south on the west side of National Boulevard some two or three hundred feet north of the tracks. She first observed the Pacific Electric car when it was three or four hundred feet west of National Boulevard. She continued to observe it and estimated that the car was traveling about 50 miles an hour from the time she first saw it until it struck the plaintiff's truck. When this witness first saw plaintiff's vehicle it was ‘right on the tracks' at the point where the accident occurred. She testified that when she first observed plaintiff's automobile it was proceeding very slowly and suddenly came to a stop; that there was an automobile in front of plaintiff's which was also stopped and an automobile behind him.

Another witness, J. M. Lee, called as a witness for plaintiff, testified he was riding in a truck which was being driven by another man. The vehicle was headed north on National Boulevard, came to a stop at the stop sign for the South Roadway of Venice Boulevard. When this witness first observed plaintiff's truck it was half way across the set of tracks north of the tracks on which the accident occurred. He first observed the electric car when it was approximately from five to six hundred feet away from the intersection and traveling at a speed of from forty to fifty miles an hour up to the time of the collision. He testified as to the place where the electric car stopped after the collision and it was stipulated the distance was 500 feet east of National Boulevard. This witness denied that any automobile was stopped in front of that of the plaintiff and testified that plaintiff's automobile was moving at the time of the accident. This witness was asked: ‘To be sure there is no mistake about it, there wasn't any traffic in front of Mr. Dolton that stopped at all?’ to which he answered, ‘No, they were going this way’ (indicating). He was then asked: ‘You are indicating that they turned to the right to go west on the south half of Venice?’ He answered: ‘Yes.’ This witness further testified that he saw only three automobiles going across the tracks, that of plaintiff and two others that were preceding him; that at the time of the accident, the first of the three automobiles had passed the corner and the one immediately in front of plaintiff was just going to turn west and had not quite proceeded on to Venice Boulevard.

Another witness, Ernest Edward Hall, called by plaintiff, testified that he was the driver of the vehicle in which the preceding witness was riding. He first saw the truck involved in the accident when it was coming south across the northerly set of tracks and when he first saw the electric car it was about 150 feet from the intersection. His estimate of the speed of the car was 50 to 55 miles an hour and he further stated that its speed did not change from the time he first saw it until the impact. He also testified that from the time he first saw the electric car and plaintiff's truck, traffic was going both ways on the South Roadway of Venice Boulevard; that there was an automobile in front of plaintiff's truck which checked its speed because of an automobile making a left turn from the South Roadway of Venice Boulevard into National Boulevard. This witness further testified that there was an automobile following that of plaintiff, but it had not reached the north set of tracks. This witness testified positively that when plaintiff started onto the south tracks where the accident occurred the electric car was about 50 feet away, that plaintiff did not stop on the tracks but merely checked his speed.

The defendants produced as a witness David Wallace, who operated a service station at the northwest corner of Venice and National Boulevards. He testified that his attention was called to the electric car by its whistle, that when he glanced up and observed the car it was 100 to 150 west of the intersection; that the whistle ceased for approximately a second and then started blowing in sharp and sudden blasts, at which time he glanced over to the intersection and observed plaintiff's truck just about the moment of the impact.

John R. Stevenson testified he was the conductor of the electric car, but being on the inside thereof did not see plaintiff's truck before the accident. He testified that as the car was approaching the crossing, he heard two long and two short blasts of the whistle and that thereafter the motorman continued blowing several short blasts of the whistle. He testified the car had been traveling about 35 miles an hour; that it was slowed down about 300 feet from the crossing to a speed of about 20 or 25 miles an hour by an ordinary service application of the brakes.

E. A. Knoller, another passenger on the electric car, was seated just behind the motorman in the front seat. He first saw plaintiff's truck going west on Venice Boulevard before it turned left; at that time, the electric car was four or five hundred feet from the intersection; that he saw the truck enter the intersection; that it turned left and continued to move onto the tracks at a speed of eight or ten miles an hour. This witness testified that there was no traffic in the intersection other than plaintiff's car. He also testified that the speed of the electric car was reduced to 25 or 30 miles an hour when it was 150 feet from the crossing and that he heard the whistle of the car start to blow when it was about 200 feet from the crossing.

Wayne H. Gillette, another passenger, seated on the second seat from the front on the right-hand side of the car, testified that when he first saw the truck it was headed toward the tracks. That the electric car was about 200 feet from the intersection moving approximately 25 to 30 miles an hour. He continued to watch the truck until it disappeared in front of the train just before the impact; that plaintiff's truck was continuously in motion and going slowly, probably 25 or 30 miles an hour. This witness testified he did not observe any traffic in front of the truck. He heard the whistle of the electric car when the latter was about 200 feet from the crossing and that it continued to blow until the car was a very short distance from the intersection. This witness testified that when the truck drove onto the tracks on which the accident occurred, the electric car was about 40 or 50 feet from the intersection. That he felt a sharp application of the brakes of the train about 50 feet before the impact occurred.

Clause Green, the motorman of the electric car involved in the accident, testified he first observed the truck when the car was about 200 feet from the intersection. He testified he watched the truck from the time he first saw it until the impact; that it was moving at about 10 or 12 miles an hour when he first saw it, but slowed down slightly when it got near the west-bound tracks. He testified that when he was about 50 feet from the point of the impact, he concluded the truck was not going to stop; that the train was then traveling about 25 miles an hour, at which time he applied the emergency. He further testified: ‘I tooted the whistle quick in short snappy blows of the whistle. At the time I applied the emergency brakes the train was traveling approximately 25 miles an hour. I would estimate that the speed of the train was retarded to about 20 miles an hour at the time of the accident.’ This witness also testified that he had operated a car of the type involved in the accident for about three years prior thereto; that the grade of the tracks immediately east and west of National Boulevard is just about level; that ‘going at a speed of 50 miles an hour on that track I could stop the electric car in about 500 feet by an application of emergency air, at a speed of 35 milea an hour I could stop it in about 350 feet, and at a speed of 25 miles an hour I could stop it between 225 and 250 feet.’ The motorman testified that when the impact occurred, ‘something hit me and knocked me out. When I came to, the train was coasting. The brakes are applied and released on the train by an instrument known as the air value handle. When I came to, this handle was in a released position and I immediately applied brakes into emergency a second time.’

The rules of caution which govern the conduct of vehicle operators approaching the tracks of an electric interurban system where such tracks are constructed as they were at the point of the accident here in question are the same as the rules which are applied to steam railroad crossings in testing negligence of the party whose conduct is in question. Such was the holding of our Supreme Court in the recent case of Lund v. Pacific Electric Railway Co., 25 Cal.2d 287, 153 P.2d 705, in which case, with relation to the highways involved, the construction of the tracks was identical to the physical conditions prevailing in the case now before us. In the cited case, 153 P.2d at page 109, the Supreme Court held:

‘The law of this state has already been settled adversely to plaintiffs' position. Here the defendant's cars were operated in interurban service upon tracks laid upon a private right of way, rather than upon city streets. Under such circumstances the rules governing their operation, including the travering of street intersections, are those pertaining generally to steam or commercial railroads and not those applicable peculiarly to streetcars which use the city streets in common with other traffic. See Simoneau v. Pacific Electric Ry. Co., 1911, 159 Cal. 494, 496–501, 115 P. 320, 329; Riney v. Pacific Electric Ry. Co., 1919, 45 Cal.App. 145, 148, 187 P. 50; Cash v. Los Angeles Ry. Corporation, 1935, 6 Cal.App.2d 738, 740, 45 P.2d 280.’

In defining the rights and obligations of vehicle drivers under the conditions with which we are here confronted, it was held in Billig v. Southern Pac. Co., 192 Cal. 357, 362, 219 P. 992, 994, as follows:

‘In the foregoing cases and in others yet to be cited the rule is that it is the duty of a person approaching the crossing of a suburban railroad being operated outside of the limits of cities, whether the same are steam or electric railroads or are railroads upon which motor cars propelled by gasoline are being used, to stop and look and listen for such approaching trains or cars and to yield the right of way to such trains or cars. Green v. Southern Cal. Ry. Co., 138 Cal. 1, 70 P. 926; Murray v. Southern Pac. Co., 177 Cal. 1, 169 P. 675; Herbert v. Southern Pac. Co., 121 Cal. 227, 53 P. 651; Griffin v. San Pedro L. A. & S. L. R. Co., 170 Cal. 772, 151 P. 282, L.R.A.1916A, 842; Thompson v. Southern Pac. Co., 31 Cal.App. 567, 161 P. 21; Basham v. Southern Pac. Co., 176 Cal. 320, 168 P. 359; Simoneau v. Pacific Elec. Co., 159 Cal. 494, 15 P. 320; Loftus v. Pacific Electric Ry. Co., 166 Cal. 464, 137 P. 34; Heitman v. Pacific Electric Ry. Co., 10 Cal.App. 397, 102 P. 15; Baker v. Southern Pac. Co., 184 Cal. 357, 93 P. 765; Young v. Southern Pac. Co. [189 Cal. 746], 210 P. 259, 262. In the case last above cited the court, in applying the foregoing rule to the facts of that case said: ‘The law presumes that a person possessing normal faculties of sight and hearing must have seen and heard that which was within the range of his sight and hearing. Absent-mindedness or forgetfulness will not suffice as an excuse for the neglect of a person about to cross a railroad track to look and listen for a possible approaching train. And a person who attempts, regardless of warnings, to cross in front of a moving train, even though he be apparently in a condition of mental abstraction and consequently indifferent to the peril of his situation, is nevertheless negligent’; and upon a former appeal of the same case this court, upon the same facts, held that such a person would be negligent as a matter of law. Young v. Southern Pac. Co., 182 Cal. 369, 190 P. 36.

‘Turning from the right and duty of persons approaching upon a highway at its intersection with a suburban railroad to the right and duty of the engineer or motorman in charge of such suburban train or car in approaching such intersection, this court has held in numerous and uniform cases that such engineer and motorman has the right to presume that a person thus approaching the crossing of a suburban railway will perform the duty which the law imposes upon him under the foregoing authorities, and in the reasonable exercise of his faculties of observation and caution will not essay such crossing until the danger due to the approaching train or car has passed, and it has accordingly been held that the operator of such train or car was not bound to check the otherwise rightful speed of his train or car in approaching and passing such crossing until at least he has reason to believe that such person so approaching such crossing is not performing, or is not likely to perform, his duty in the foregoing regard.’ (Emphasis added.)

Relying upon the foregoing rules and the authorities supporting them, appellants first contend that the trial court committed prejudicial error in receiving into evidence over their objection certain sections of an ordinance of the City of Los Angeles which regulated operators of streetcars with respect to speed and stopping in obedience to boulevard stop signs.

The sections of the aforesaid ordinance, which is numbered 77,000 of the Municipal Code of the City of Los Angeles, read as follows:

Section 80.21:

‘(a) The Commissioners are hereby authorized to determine those streets and intersection at which traffic is hazardous or dangerous to life or property by reason of the volume of traffic upon such streets or at such intersections, or the lack of visibility of the drivers of vehicles approaching said streets or intersections, or because of the numerous reported accidents or the possibility thereof, or by reason of other physical conditions likely to render any such street or intersection dangerous or hazardous to life or property.

‘(b) When the Commissioners have determined that a street or intersection is dangerous or hazardous to life or property, they are authorized and emppowered to place and maintain, subject to the approval of the Council, stop signs at or near such of the entrances to said streets or intersections as they shall designate.

‘(c) Every such stop sign shall conform to the requirements of the Vehicle Code.’

Section 80.22:

‘When stop signs are erected and maintained pursuant to Section 80.21 or pursuant to any former ordinance or resolution at the entrance to any intersection, every driver of a vehicle and every operator of a street car shall stop at every such stop sign before entering the intersection, except when directed to proceed by a police officer or traffic control signal.’

Section 80.43:

‘(a) The operator of any street car shall not drive said street car at a speed exceeding the following:

‘1. Fifteen (15) miles per hour when traversing another street car crossing or a highway crossing or when turning upon curves, in either event when the operator does not have an unobstructed view along such intersecting rails or highway or around such curve within a distance of two hundred (200) feet; also when passing schools while persons are entering or leaving the grounds thereof.

‘2. Twenty (20) miles per hour in business districts.

‘3. Twenty-five (25) miles per hour in residence districts.

‘4. Forty-five (45) miles per hour in all other places.

‘(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.’

Appellants objected to the introduction of sections 80.21 and 80.22 on the ground, among others not here pertinent, that said sections were ‘incompetent, irrelevant and immaterial, having no bearing upon the operation of interurban cars on tracks on a private right-of-way; that if construed as applying to such operation, said sections would be unconstitutional.’

To the introduction of section 80.43 of the ordinance, appellants objected on the ground that said section was ‘wholly immaterial, having no bearing on the facts at issue for the reason that said section was not applicable to the operation of electric trains upon a right-of-way such as was involved in the case at bar’.

The objections were overruled and each of the foregoing sections of the ordinance was received in evidence. The ruling was erroneous. The provisions of the ordinance are limited in scope to the operation of street cars. A street car is defined in Webster's New International Dictionary, second edition, as ‘a car, usually a passenger car, running through the public streets.’ The same authority defines a street railway as ‘a street car line.’ In Piedmont Cotton Mills v. Georgia Ry. & Electric Co., 131 Ga. 129, 62 S.E. 52, 58, the court states:

“Street cars', accurately speaking, are cars which traverse the streets of a town or city, and carry passengers, who get on and off at various points along the line. They have been considered as vehicles of street travel, * * *.'

It is therefore the nature and location of the tracks rather than the character of the particular car that is running upon the tracks that determines the applicability of the ordinance. Respondent directs our attention to the fact that the car here in question is ‘of the type which customarily functions in local traffic’; ‘would stop at any corner on signal’; but, as pointed out in Simoneau v. Pacific Electric Ry. Co., 159 Cal. 494, 501, 115 P. 320, if the test were not the location and nature of the tracks rather than the character of the particular car, very little protection would be afforded the public by these safety ordinances, because interurban trains would be exempt from the ordinance when operating upon tracks which are laid upon public streets, that is to say, streets from the use of which as a public highway the public is not excluded. There can, therefore, be no doubt applying the foregoing test, that in so far as the track was laid along the private right-of-way in such manner as to exclude the general public from the use of any part of the right-of-way, such track was not a street railway track and the car operated over such right-of-way was not a ‘street car’ in contemplation of the ordinance. Nor does the fact that the private right-of-way was intersected at intervals by public highways devoted to vehicular traffic, at which intersections the track is laid flush with the street so that vehicles might cross the track on such street, convert this part of the track into a street railway track. As was said in Simoneau v. Pacific Electric Ry., supra, 159 Cal. at page 500, 115 P. at page 324:

‘The respondent draws attention to the fact that, for the width of Thirty-eighth street the track was laid flush with the surface so that passengers and vehicles might cross on the street. It cannot be said that this part of the track was thereby converted into a street railway track. A street railway, as we have seen, is one running along a public street, not across one. To adopt the contention of the respondent in this regard would mean that the track of every commercial or steam railroad which in entering the city of Los Angeles crossed any street became to the extent of the width of such street a street railway track. This is obviously not the intent of the ordinance.’

Upon the authority of Simoneau v. Pacific Electric Railway, supra, and Lund v. Pacific Electric Railway Co., supra, it must be held that when the ordinance speaks of street cars it has reference to cars operated on rails along and upon the streets of the City of Los Angeles and not to cars or trains of cars operated on a private right-of-way which at intervals merely cross a street. Had the drafters of the ordinance intended otherwise, it would have been easy and simple to so provide. Lund v. Pacific Electric Railway Company, supra, 153 P.2d at page 709. To us it is clear from the record that, at the time and place with which we are here concerned, the electric car was being operated as part of an interurban rapid transit system between Los Angeles and Santa Monica and not as a street car. Hence, the admission of the aforesaid ordinance into evidence was error. Respondent urges that appellants cannot now complain of the introduction of the ordinance into evidence because they failed to make a motion to strike the same. It is only where the evidence is apparently admissible and no motion is made to strike it when the contrary is shown that an objection to its admissibility is deemed to have been waived, but where, as here, the challenged evidence was obviously inadmissible at the time it was offered and appropriate objection was made to its introduction, a subsequent motion to strike is not necessary to preserve the error on appeal. Ballos v. Natural, 93 Cal.App. 601, 608, 269 P. 972; Nakamura v. Los Angeles Gas & Electric Corporation, 137 Cal.App. 487, 490, 30 P.2d 1022. The error complained of requires a reversal of the judgment because we cannot say what weight and influence the improper evidence had upon the trial court in framing its findings of fact wherein it determined that respondent was free from negligence and that appellant motorman was guilty of negligence which proximately contributed to respondent's injuries. Davis v. Robinson, 50 Cal.App.2d 700, 705, 123 P.2d 894. Appellants' contention that respondent was, as a matter of law, guilty of negligence cannot be sustained. Although respondent's actions must be viewed in the light of the standard of conduct required of persons operating vehicles at railroad crossings, nevertheless, we are not prepared to say that reasonable minds could draw but one inference from respondent's conduct and that such inference points inevitably to the conclusion that in driving onto the appellant Railway's track respondent closed his eyes to the dangers necessarily involved and ‘blindly, recklessly and imprudently’ attempted to cross in front of an approaching electric car. While there is in the record testimony which would support a finding of negligence upon the part of respondent, nevertheless, if his testimony is to be believed, then it cannot be said as a matter of law that he was guilty of negligence. True, respondent saw the electric car approaching when he was standing at the stop sign but the car was then four or five hundred feet away. Respondent also admitted that he again saw the car as he made his left-hand turn when he was 58 feet from the car tracks, but when he completed his left-hand turn and found himself in the southbound traffic consisting of four or five other vehicles he was deprived of freedom of action. When the traffic in front of him halted he had no alternative except to stop. He could not turn aside and he could not go backward because of the automobile to his rear. The situation here present is not comparable to those existing in the cases cited by appellants wherein the vehicle driver approaches and goes upon the track with perfect freedom of action to stop, accelerates his speed or turn aside. Under the circumstances present in the case at bar, we are not warranted in saying that no reasonable person would have conducted himself as respondent did in the operation of his vehicle. The question of contributory negligence, in view of the conflict in the evidence concerning the situation in which respondent found himself and the manner in which he acted thereunder, was therefore one of fact and not of law.

For the foregoing reasons the judgment is reversed and cause remanded for a new trial.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.