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


Civ. 15198.

Decided: July 09, 1946

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

From a judgment in favor of defendant after trial before a jury in an action to recover damages for injuries received as the result of a collision between defendant's three-car train and an automobile in which plaintiffs were riding, the latter appeal.

The record discloses that on January 24, 1944, defendant operated an interurban streetcar service to and from Los Angeles and Wilmington over its private right of way, which line ran in a northerly-southerly direction. It maintained four sets of tracks where the railroad intersected Florence Avenue, a through highway 72 feet wide extending in an easterly-westerly direction. These four sets of tracks will be hereinafter referred to as tracks 1, 2, 3 and 4, the westernmost track being 1 and tracks 2, 3 and 4 being the tracks in that order east of track 1. Tracks 1 and 2 were used for southbound trains; tracks 3 and 4 were used for northbound trains. Where these tracks crossed Florence Avenue the pavement of the highway was flush with the tops of the rails, but north and south of Florence Avenue the tops of the ties were exposed and the rails extended their full height above them. The crossing was guarded by two automatic signaling devices, hereinafter called wigwags, which were located on each side of the four tracks and faced vehicular traffic approaching the tracks. On the approach of trains these wigwags were activated by separate relays for each track, each of which acted independently of the other. These wigwags, when in operation, caused a bell to ring, a red light in the center thereof to become lighted, and the disc oscillated from north to south as a pendulum. These were both set in motion and stopped when the trolley of a train contacted brushes which were affixed to the trolley wires above the track on which any given train might be moving. These wigwags began and ceased to operate as above mentioned at certain distances from the center of Florence Avenue which was 72 feet wide as follows:

By the above arrangement, if a car or train northbound on track 3 passed the cut-out at a time when it was followed by a car or train about 500 feet behind on the same track 3, the wigwag signal device would stop operating while the rear car was traveling the 500 feet to the crossing, providing there was no other car within 1750 feet from the crossing on any of the other tracks.

At about 12:45 a. m., January 24, 1944, a night somewhat misty, although there was good visibility for a distance of at least 500 feet, Mr. Dinty Ercanbrack was driving an automobile, in which the three plaintiffs were riding, in an easterly direction on Florence Avenue. As he approached the above described intersection, he noticed a freight train going south on track No. 1 and he accordingly stopped his automobile 20 or 30 feet from the train. While waiting for the freight train to pass he noticed the wigwag to his right swinging back and forth. At about the time the rear of the freight train passed the intersection, Mr. Ercanbrack saw a single car of defendant traveling north over the intersection. Both the car and train passed about the same time whereupon the wigwag stopped working. Mr. Ercanbrack without looking to his right or left3 proceeded to cross the tracks, and as he passed over track No. 2 he noticed a dark object and a flash of light, whereupon the automobile which he was driving collided with a three-car train of defendant traveling in a northerly direction on track No. 3. As a result of the accident the three plaintiffs4 who were the guests of Mr. Ercanbrack were injured.

Plaintiffs urge reversal of the judgment on two propositions which will be stated and answered hereunder seriatim:

First: The trial court committed prejudicial error in instructing the jury as follow:


‘The driver of the auto in which the plaintiffs were riding testified that he started to cross defendants' tracks without looking for approaching trains, but relied wholly on the wigway.

‘You are instructed that the driver of the automobile was guilty of negligence as a matter of law, and if you find that such negligence on his part was the sole proximate cause of the accident, then your verdict must be for defendant.’

The foregoing instruction was correct in view of the rule that if the driver of an automobile crosses railroad tracks in sole reliance upon safety appliances installed by a defendant railroad with complete disregard for his own safety by failing to look to the right or left before crossing the tracks, such conduct constitutes contributory negligence as a matter of law. (Will v. Southern Pacific Co., 18 Cal.2d 468, 474, 116 P.2d 44; Koch v. Southern California Ry. Co., 148 Cal. 677, 680, 84 P. 176, 4 L.R.A.,N.S., 521, 113 Am.St.Rep. 332, 7 Ann.Cas. 795; Southern Pacific Co. v. Day, 9 Cir., 38 F.2d 958, 961.)

In the instant case the uncontradicted testimony of the driver of the automobile in which plaintiffs were riding was that he looked neither to the right nor to the left after the wigwag stopped moving, and that he started to cross the tracks relying exclusively upon the fact that the wigwag was not in motion. The foregoing instruction was therefore correct in view of the above stated rule of law.

Krupp v. Los Angeles Ry. Corp., 57 Cal.App.2d 695, 135 P.2d 424, is not here in point. In that case the trial court erred in refusing to instruct the jury, pursuant to a request of plaintiffs, that the negligence of the driver of the car in which plaintiffs were guests was not imputable to them. In the instant case the situation is different for the trial court did instruct the jury on such question as follows:

[1] ‘As to the defense of contributory negligence there is no evidence from which you could find that the plaintiffs themselves were negligent. The negligence of the driver of the automobile in which plaintiffs were riding is not imputed to them. Negligence of the driver of said automobile is a defense only if you find that it was the sole proximate cause of the accident in question.’

[2] ‘This does not mean that the law seeks and recognizes only one proximate cause of an injury, consisting of only one factor, one act, one element of circumstance, or the conduct of only one person. To the contrary, the acts and omissions of two or more persons may work concurrently as the efficient cause of an injury, and in such a case, each of the participating acts or omissions is regarded in law as a proximate cause.’

[3] ‘If you find that both the defendant and the driver of the automobile were negligent, and that their concurring negligence was the sole proximate cause of the accident, you are not to compare the negligence of one with the other, and you should return a verdict in favor of each of the plaintiffs.’

From the foregoing instructions it is evident that the jury was fully and fairly instructed upon the doctrine of contributory negligence under the facts of the present case.


‘In this case there is no evidence upon which to support a finding that the defendant was negligent in respect to the installation, operation or maintenance of the wigwag signals installed at the crossing. You are therefore instructed that as to the issue of whether defendant was negligent in respect to the wigwags, you must find that the defendant was not negligent, even though you may believe from the evidence that the wigwags stopped operating after the freight train passed the crossing.’

The foregoing instruction was likewise correct in view of the established rule in California that the mere failure of a crossing signal to operate does not of itself constitute negligence. (Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 130 et seq., 137 P.2d 441; Vaca v. Southern Pacific Co., 91 Cal.App. 470, 478, 267 P. 346.)

In the present case the record is devoid of any testimony upon which the jury could predicate a finding that defendants were negligent in the maintenance of the wigwag except the testimony that in the single instance the wigwag did not operate. Therefore under the rule just stated the trial court properly instructed the jury that there was not any evidence to support a finding that defendant was negligent in respect to the installation, operation or maintenance of the wigwag signals installed at the crossing.

Will v. Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44, and Eastman v. A., T. & S. F. Ry., 51 Cal.App.2d 653, 125 P.2d 564, are not here applicable since each case is factually distinguishable from the present one. In the Will case six different witnesses testified that at various times during the week before the accident the automatic signal devices failed to operate as the train approached the crossing.5 There was no such evidence before the jury in the instant case. In the Eastman case the liability of the defendant was predicated upon its failure to comply with the provisions of section 486 of the Civil Code and not upon the sole ground that the wigwag failed to operate.

There is likewise no merit in plaintiffs' contention that since a repair man employed by defendant was seen working on the wigwag mechanism at the southwest corner of the intersection where the accident occurred shortly after the accident the jury could infer from such fact that defendant was negligent in the maintenance or operation of the wigwag signals. Nor do we find any merit in plaintiffs' contention that the three-car train involved in the accident was following a single northbound car on track No. 3 so closely that when the single northbound car cut out the wigwag it remained silent and inoperative while the three-car train traveled the last 500 feet or less toward the crossing.

Mr. Ercanbrack testified that the northbound streetcar was on the second or third track. Plaintiff Coello testified that the northbound car was on track 3 or 4. Plaintiff Bragg did not place the single car on any specific track, while plaintiff Startup testified that the single car was traveling on track No. 4. Bearing in mind the rule that there must be more evidence of negligence than mere speculation, conjecture or surmise to support an inference of negligence (Worcester v. Theatrical etc. Corp., 28 Cal.App.2d 116, 119, 82 P.2d 68; Bayside Land Co. v. Phillips, 43 Cal.App. 255, 258, 184 P. 951; 5 C.J.S. (1937), Appeal and Error, § 1647, page 608), it is clear that the record is devoid of any evidence in the instant case which would sustain a finding that a northbound car preceded on track 3 the three-car train involved in the accident. Mr. Ercanbrack and the plaintiff Coello by their testimony failed to place such a car on track 3, while plaintiff Bragg did not place the car on any track. The only definite testimony which would have supported a finding of fact was given by plaintiff Startup who placed the northbound car on track No. 4.

In view of the evidence in the present case the questioned instruction was correct.


‘As to whether the driver of the automobile in which plaintiffs were riding was negligent you are instructed that the duty of the driver of a vehicle about to cross an electric railway track, laid on a private right of way, like the one in this case, is the same as that required of a person approaching or crossing the track of a steam railway company. The rule is that it is the duty of a person approaching such crossing, whether the same is a steam or an electric railway, to look and listen for approaching trains or cars and to stop and yield the right of way to such trains or cars. 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. Absentmindedness or forgetfulness will not suffice as an excuse for the neglect of a person about to cross a railroad track, like the one in this case, to look and listen for possible approaching trains, or cars; and a person who attempts, regardless of warnings, to cross in front of a moving train or car, even though he be apparently in a condition of mental abstraction and consequently indifferent to the peril of his situation, is nevertheless negligent, and if you find the driver of the automobile was negligent in these respects and that such negligence on his part was the sole proximate cause of the accident, plaintiffs cannot recover against the defendant, and your verdict should be in favor of the defendant.’

The foregoing instruction was a correct instruction in view of the authorities hereinbefore cited. There is nothing in said instruction, contrary to plaintiffs' contention, which required the driver of the automobile in which plaintiffs were riding to exercise the same degree of care that he would have been required to exercise had he approached an unguarded crossing. Hence, Robbins v. Southern Pac. Co., 102 Cal.App. 744, 283 P. 850; Nelson v. Southern Pac. Co., 8 Cal.2d 648, 652, 67 P.2d 682; Marchetti v. Southern Pac. Co., 204 Cal. 679, 269 P. 529; O'Connor v. United R. R., 168 Cal. 43, 141 P. 809; Tousley v. Pacific Elec. Ry., 166 Cal. 457, 137 P. 31; Thompson v. Los Angeles & S. D. B. Ry. Co., 165 Cal. 748, 752, 134 P. 709; and Bush v. Southern Pac. Co., 106 Cal.App. 101, 289 P. 190, are not in point.

Second: The trial court committed prejudicial error in not modifying and giving certain instructions requested by plaintiffs.

This proposition will not be considered by us for the reason that the law is settled that where a requested instruction is erroneous in part the trial judge is not required to modify the requested instruction or give another instruction in lieu thereof. (Nelson v. Southern Pac. Co., 8 Cal.2d 648, 653, 67 P.2d 682; Hart v. Farris, 218 Cal. 69, 75, 21 P.2d 432; Paine v. Bank of Ceres, 59 Cal.App.2d 242, 247, 138 P.2d 396 et seq.) In the instant case plaintiffs in their brief state that the instructions ‘should have been adapted and given’. In view of the rule of law just stated, the court properly refused to modify and give the requested instructions.

For the foregoing reasons the judgment is affirmed.


3.  Mr. Ercanbrack testified as follows:‘Q. As a matter of fact, you started just about as soon as you could pull in behind the freight train? A. As soon as the wigwag quit working.‘Q. Where was the freight train then? A. Well, it was going down the track, but it was not far. * * *‘Q. Did you look at that time to see how many tracks there were at this crossing? A. No.‘Q. You know, of course, there was more than one because you saw cars on more than one track? A. Yes.‘Q. Did you look to see if there were any others? A. No.‘Q. Did you ever look in any direction, either up or down those tracks, after you started across? A. No, not that I can recall. I probably glanced as I generally do, but that I don't know.‘Q. You didn't look to your right as you came across the tracks that the freight train was on? A. No.‘Q. Now, was this wigwag that you say stopped working, was it standing absolutely still when you started to cross these tracks? A. I believe it was, I know the lights were out.‘Q. You saw the lights go out, did you? A. Yes, sir.‘Q. And when you saw that you just proceeded on across the tracks? A. Yes.‘Q. Did you look to your left after the freight train started to see if any freight cars were coming south on those tracks? A. No.‘Q. Then you did not look either way again? You just went right on across the tracks? A. After the wigwags quit working I did not figure there were any other cars approaching. I did not know how many tracks were there.‘Q. And you did not look to find out? A. No.‘Q. You relied exclusively on the wigwag? A. Yes.’ (Italics added.)

4.  Mr. Ercanbrack, the driver of the automobile, is not a party plaintiff.

5.  Though this evidence does not appear in the opinion of the Supreme Court, it is to be found on the following pages of the Reporter's Transcript on Appeal in such case:Page 77, line 18 to page 78, line 11; page 148, line 13 to page 149, line 5; page 244, lines 13–20; page 316, line 13 to page 317, line 8; page 335, line 21 to page 336, line 4; page 360, lines 2–15.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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