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


Civ. 16666.

Decided: April 25, 1949

Charles A. Thomasset, of Los Angeles, for appellants. C.W. Cornell, O.O. Collins, Malcolm Archbald, John R. Allport, and John H. Gordon, all of Los Angeles, for respondent.

This is an appeal by plaintiffs from a judgment on the verdict in open court, in an action brought by them to recover damages for the alleged wrongful death of their minor son, Robert H. Powell.

The record consists of the judgment roll and a settled statement from which it appears that the death of said minor resulted from a collision between a train of respondent railway company and a truck operated by one Lester D. Dewey under the following circumstances:

At the time of the accident, the minor decedent was employed by Mr. Dewey and was being transported from his home to the employer's place of business.

The collision occurred at 92nd Street in the City of Los Angeles where it crosses the private right of way of respondent. At that point 92nd Street is 30 feet wide; the right of way is more than 100 feet wide, and is bordered on the east by Graham Avenue which is 32 feet wide with curbs on both sides. The right of way has six sets of rails. At the trial the first four sets were designated from east to west as A, B, C and D. The accident occurred when a southbound through train traveling on track C collided with the truck which was crossing the right of way from east to west on 92nd Street.

The easterly rail of track C is 55 feet from the westerly curb of Graham Avenue. The truck made a boulevard stop on the easterly side of Graham Avenue, crossed that street, and entered the right of way, crossing A and B tracks without stopping until it reached track C where it was struck by the train. The accident occurred at 1 p.m. on August 28, 1945. The weather was clear.

The truck was a 1936 Diamond T, two-ton, flat bed, open body model with no stakes, sides or roof, and was regularly used to transport merchandise by the owner, who was in the furniture business. At the time in question, decedent and two other boys were riding on the truck platform behind the cab; decedent sitting near the left-hand side of the platform with his back to the cab, the other two boys sitting between him and the right edge of the platform. The impact of the collision hurled decedent from the left edge of the platform over his companions and the right edge of the platform in such a fashion that he was struck by the train and sustained injuries from which he subsequently died. The point of impact was established as seven feet south of the north curb of 92nd Street and 54 feet west of the west curb of Graham Avenue.

The motorman, defendant Wilmer I. Kivett, testified in substance that, as he approached 92nd Street, he was operating two cars; that it was shortly after noon and the sun was shining, and for a distance of 2,000 feet north of the scene of the accident, his view of the intersection was unobstructed; that there was no traffic ahead of him and none crossing the intersection; that when he was about 600 feet away from the scene of the accident he started braking and continued braking for a distance of 400 feet, thus reducing his speed to 25 miles per hour; that he released his air and started coasting when he first saw the truck, and continued to coast until he was about 75 feet from the scene of the actual collision where he applied his emergency brake; that he was not braking at all for a distance beginning at a point 200 feet north of the intersection to a point approximately 75 feet from the intersection; that when he first saw the truck it was on the first rail of the tracks denominated A; that while he was approaching he saw the truck cross Tracks A and B without stopping; that at 25 miles per hour he could have stopped his train within 250 feet and that he did bring it to a stop about 20 feet south of the south curb of 92nd Street.

It was stipulated that this witness testified as follows at the Coroner's Inquest held seven days after the accident: “I was southbound and had pinched down to the company speed of 25 miles an hour or less for the crossing and about 150 feet from the crossing I saw the truck enter the right-of-way. I thought the truck was going to stop and I released my air and at that time I was going about 25 miles an hour. Then, I saw the truck wasn't going to stop so I put my train into emergency about 75 feet from 92nd Street and the truck rolled onto the private right-of-way and the left front corner of the car caught the right front wheel and fender of the truck throwing it around and off the right-of-way.” That when this witness first saw the truck it was at the west curb line of Graham Avenue just entering the right-of-way and his train was 150 feet north of 92nd Street; that he thought the driver of the truck was going to stop, but was unable to tell if the driver had applied the brakes.

Lester D. Dewey, the driver of the truck, testified that his son and the two Powell boys were “in the frame of the truck behind the cab, sitting on the truck”; that he was travelling west on 92nd Street; that he made the boulevard stop at Graham, continued going straight across Graham and was “headed into the Pacific Electric right-of-way” at the 92nd Street crossing; that he was approximately halfway across Graham Avenue when he first saw the train which was then about 900 feet away, traveling at a speed of 50 miles per hour; that when he made the boulevard stop at Graham his brakes were operating all right; that he could not see the train from the boulevard stop because his view was cut off by a building. In answer to the question: “And at the seeing of the train the first time until the collision, did you stop?” the witness stated: “I didn't come to a flat stop. I tried to make a stop and I seen I couldn't beat the train across because my brakes failed me.

“Q. You kept right on going? A. Yes, very slowly. I had the emergency back. That didn't stop the truck. My cylinder on the right back wheel failed. *

“Q. On this occasion, after making the boulevard stop, and in making the stop, did you apply your brakes? A. Yes, after I saw the train coming, and saw I didn't have a chance to beat it, I applied the brakes.

“Q. What happened? A. Nothing. I kept rolling. I pulled the emergency back, but the emergency wasn't good enough to stop it before it got on the track. It got up there a little ways, just enough to catch the right front wheel of the front end of the truck.

“Q. As you approached the point of collision, did you make an estimate of the speed of the train at any time? A. Well, at the time the train actually hit the truck, he probably wasn't going over fifteen miles an hour because he had already used his brakes. That would slow the train down.

“The Court: How fast were you going then. The witness: I was already stopped. * I had already come to a stop at the time the train hit, he was slowing down. * When I first saw him, the train was rolling a pretty good rate of speed. I don't know how fast. I would say—I guess it was around fifty miles an hour when I first saw the train. That is the reason I began to stop. *

“Q. Now, had you had occasion to use your brakes before you made your boulevard stop there? A. Yes. * I backed out of my driveway, and when I turned West off of Grandee, out of Elm.

“Q. You all started together? A. That is right.

“Q. From your yard, with the children? A. Yes, sir; that is right.

“Q. Then the first stop you made after that, you backed out and had to stop and your brakes worked all right? A. Yes.

“Q. Your foot and your hydraulic brakes worked; you didn't have to use your emergency brake? A. No, they worked perfect.”

That he used his footbrakes three times in the distance of three blocks and they worked, but beyond the boulevard stop the brake had no effect at all; that when he put his foot on the pedal, the pedal went clear to the floor. “The cylinder busted. It only takes an instant for it to go off. You can have brakes one minute and the next minute you don't. * That is a feature of hydraulic brakes.” That when he came to a complete stop the back wheels of the truck were on Track A and he realized that the impact was inevitable.

At the time of the accident respondent had in full force and effect certain train operating rules and regulations reading in part as follows: “720(b) In complying with speed regulations at highway crossing, speed of train will be reduced to speed applying a sufficient distance in advance so that train will be allowed to coast on approach to crossing, to enable full braking power being obtained in emergencies. (c) After speed of train has been reduced to speed applying and there is no vehicle or other conveyance seen approaching that will conflict, brakes may then be released and train allowed to coast not to exceed speed applying at crossing, and except where the speed applies over the crossing when traffic conditions make it safe to do so power may be applied entering the crossing. (d) The purpose of this procedure is to have train under such control that stop can be made before reaching crossing in case of possible obstruction and to have brake pipe and auxiliary reservoir fully charged so that the highest degree of brake efficiency can be obtained if an emergency arises.”

These rules were admitted in evidence over the objection of respondent that they were incompetent.

With reference to damages suffered by appellants by reason of the death of their son, it was testified that they incurred or paid medical and funeral expenses approximating $1200; also that deceased was affectionate toward them, participated in discharging household duties, was endowed with promising musical talent and was an outstanding student.

Appellants here urge that they are entitled to a judgment as a matter of law, for the reasons that:

(a) There is no evidence of any contributory negligence on the part of appellants or of the decedent;

(b) That respondent railway company is liable, because its motorman was negligent and his negligence contributed to the happening of the accident and the death of appellants' son;

(c) That the testimony of the motorman is an admission of liability.

On the question of contributory negligence of decedent, respondent calls attention to section 596.5 of the Vehicle Code providing that “No person shall ride on any vehicle upon any portion thereof not designed or intended for the use of passengers. This provision shall not apply to an employee engaged in the necessary discharge of a duty or to persons riding within vehicle bodies in space intended for merchandise.” In construing this section in Albania v. Kovacevich, 44 Cal.App.2d 925, 928, 113 P.2d 251, 253, the court stated: “Doubtless this section was primarily intended to prevent persons from hanging on the outside portions of vehicles or from riding in positions which would add to the hazards which might normally be expected in the ordinary operation of such vehicles, or in the event such vehicles were struck by other vehicles.”

In the instant cause it was shown that the truck was customarily used for the delivery of merchandise which was placed on the truck bed, and also that decedent was riding “in the frame of the truck behind the cab, sitting on the truck.” It was not disputed that decedent was an employee of the driver of the truck, and it is obvious from the testimony of the latter that said decedent was riding in the space intended for merchandise.

Moreover, as stated in 2 Cal.Jur.Supp. 657, sec. 427: “* the ‘negligence’ of the driver is not ‘attributable’ or ‘imputable’ to the plaintiff. This is the accepted rule, apparently, where it appears that the plaintiff had nothing to do with the control or management of the vehicle * as where it appears that the victim of a fatal collision was riding with his employer who drove the vehicle.” The settled statement herein recites that “there was no evidence that the decedent ever saw the train.”

Each of the opposing parties charges that the negligence of the adversary operator was the sole proximate cause of the accident.

In collisions between vehicles and trains, the “question as to whether the defendant company or the driver of the vehicle was responsible for the collision is to be determined by reference to the facts which disclose the opportunity that the actors had, respectively, to foresee and avert the collision. Responsibility is attributable to the one who was in the better situation to anticipate and prevent its occurrence. Where the plaintiff contends that the collision was caused by the mode of operation of the train or street car, the defendant railroad company can be held liable only on a showing that the engineer or motorman was responsible for the happening of the calamity—that is, that he ought to have foreseen and averted it.” 2 Cal.Jur.Supp. 638, sec. 414.

Again in the same work (2 Cal.Jur.Supp.), p. 649, sec. 421, it is stated: “A recovery is sustainable where the evidence shows that the plaintiff's vehicle was stopped or stalled on or adjacent to the street car tracks, and the defendant may be held liable where it is shown that the plaintiff turned his vehicle upon the tracks in advance of the street car—and even in case of a head-on collision.”

It is established by the record herein that the driver of the truck stopped at the boulevard stop on the east side of Graham Boulevard where his view of the tracks was obstructed by a building; that he shifted into second gear and was proceeding at a speed of eight miles an hour across Graham; that when he reached the center thereof he first noticed the approaching train which was then 900 feet to the north of the intersection; that when he first saw the train he thought he “might have time to beat the train across” but he then “saw it was traveling pretty fast” and that he had better stop; that with the front of the truck on track “A” he applied his brakes, but because of failure thereof he was unable to stop and the front of the truck rolled onto track “C” before he could control it with the emergency brake.

In an annotation in 14 A.L.R. 1339, reference is made to a similar situation: “It will be observed that in the reported case, Puhr v. Chicago & N.W.R. Co. (171 Wis. 154, 176 N.W. 767) [14 A.L.R. 1334], it was decided that if one, knowing of an approaching train, drives his automobile toward a railroad crossing with the intention of stopping to let the train pass, he would not be guilty of any negligence if, upon making a reasonable effort to stop, he discovered too late that his brakes failed to work, so that the machine went upon the track in front of the train; but that if the driver had prior knowledge of the imperfect condition of the stopping mechanism of his car, it was his duty to approach the track cautiously, and at a rate of speed that would enable him to bring the car to a stop in its then condition, as known to him, before reaching the zone of danger; and that if, with knowledge of such defective condition, he failed to approach the track with that degree of caution, he was guilty of more than a slight want of ordinary care.”

As hereinabove recited, the motorman testified that he had a clear and unobstructed view of the intersection for a distance of 2,000 feet to the north thereof; that when he was about 600 feet from the scene he started braking and continued to do so for a distance of 400 feet, thus reducing his speed to 25 miles an hour; that when he was about 150 feet from the crossing he saw the truck enter the right-of-way; that he then released his air and started coasting and did not again apply his brakes until he was about 75 feet from the north curb of 92nd Street; that he stopped the train about 20 feet south of the south curb of 92nd Street, to-wit, within a distance of approximately 125 feet.

The situation which confronted the motorman of respondent railway was one anticipated by operating rule 720, above recited, to the effect that the motorman may not release his brakes on approaching an intersection where there is another vehicle seen approaching which may cause a conflict. Had he continued to brake his train instead of releasing the air when he saw the truck enter the right-of-way, the accident could have been avoided.

Appellants also point out that under section 575 of the Vehicle Code, the truck was required to stop not less than 10 feet from the first rail of the tracks; and that in full view of the motorman and to his knowledge and admitted observation, the truck did not stop, but continued to cross the tracks A and B to the point of collision. In other words, when the motorman released the air and started to coast, the truck was in violation of section 575, supra, which should have been a warning to the motorman to exercise due caution to prevent a collision.

With respect to appellants' complaint that the court erred in instructing the jury on the legal effect of respondent's operating rule 720, such instruction was not prejudicial to appellants' cause. The violation of such rules, while not negligence per se, is a circumstance to be considered. Gett v. Pacific G. & E. Co., 192 Cal. 621, 221 P. 376.

In the circumstances presented by the record herein, it is clear that the motorman of respondent's train was in a better position than the driver of the truck to foresee and avert the collision, and his act of releasing the air and failing to apply the brakes until he was within 75 feet of the intersection constituted negligence as a matter of law and the proximate cause of the accident.

For the reasons stated, the judgment is reversed and the cause remanded for a determination of the amount of damages sustained by appellants.


DRAPEAU, J., did not participate.