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

HILDEBRAND v. ATCHISON, T. & S. F. R. CO. et al.*

Civ. 20060.

Decided: July 07, 1954

S. L. Kurland and Robert H. Green, Los Angeles, for appellant. Robert W. Walker, Louis M. Welsh, William L. Pemberton, Los Angeles, for respondents.

In his action for personal injuries resulting from driving his motorcycle into a locomotive at a crossing, appellant was denied relief pursuant to a motion for nonsuit by defendants on the ground that there was ‘no attempt to show that the Santa Fe was involved’ and as to defendant Los Angeles Junction Railway Company, ‘the evidence * * * establishes beyond a question of a doubt that the accident occurred at the crossing near 61st Street * * * and that it would be impossible for it to have happened at the lower crossing’ as contended by appellant.1

After an evening with a lady friend at the theater, appellant was on his way home about 3:30 o'clock in the morning. He was operating a new motorcycle in a northerly direction on Eastern Avenue in Los Angeles, a highway familiar to him. He knew the avenue was crossed by railroad tracks and even contends that the collision occurred at a crossing 1,000 feet south of the actual scene. The night was clear and dark, and the pavement dry. Although familiar with the area, he did not bring his vehicle to a stop to look and listen, but, having passed a rise in the road, at a distance of 100 to 150 feet from the track, he first saw 250,000 pounds of locomotive moving eastward and directly across his path, illuminated by his own headlight. His course was about three feet to the east of the center, double white line. He promptly applied his brakes by both hand and foot, reducing his speed to less than 20 miles per hour at the point of collision. He saw no wigwag; heard neither whistle nor bell, nor the issue of steam. Just before crossing Eastern Avenue the locomotive had stopped 40 feet away without even ringing a bell. Descending at a speed of 35 miles an hour from the rise in the avenue with his motorcycle light shining on the mogul engine, appellant crashed into the monster, with disastrous results to motorcycle and himself.

The motion for nonsuit was granted on the ground that appellant was contributorily negligent as a matter of law. Judgment was entered denying appellant relief. He now contends that such ruling was prejudicial error and demands a reversal. Such contention has no factual basis and its triumph would be error. He testified that when he struck the engine, he was going at a speed of 20 miles an hour. Either he stepped on the throttle again after the brakes had been applied or he had been moving at a faster speed than he testified.

A motorcycle must be equipped with brakes that will cause the machine going 35 miles per hour to come to a complete stop within 113 feet. Vehicle Code, § 670. If he applied his brakes and they were in working order when 150 feet away from the engine, he would have stopped within 113 feet. If he had reduced his speed to such extent as to be able to stop in another 13 feet, by the simple expedient of turning to right or left he would have avoided hitting the engine; he would not have reached the tracks. Having a headlight that enabled him to discern ‘a person or vehicle at a distance of at least 100 feet ahead’, Vehicle Code, § 648, the huge engine was in plain view when he was 100 feet south of the tracks.

Conceding the absence of wigwags, bells and other warnings by the operatives of the engine, the position of appellant is not improved by such concession. He lost, not because of a lack of negligence of the operatives but by virtue of his contributory negligence. The defense of contributory negligence stems from the implication of such negligence on the part of defendant ‘as would justify a recovery by the plaintiff if he were not also in fault.’ Herbert v. Southern Pacific Co., 121 Cal. 227, 232, 53 P. 651, 652. In deciding whether the nonsuit was correctly ordered, this court's attention is focused upon whether appellant was negligent and, if so, whether his negligence proximately contributed to cause his collision. A railroad crossing is a place of danger and is, itself, a sufficient warning always to be heeded. The exercise of ordinary care at such crossing is not excused by the railroad's failure to exercise such care. While the quantum of a motorist's care required as reasonable may be less where there is a flagman, a wigwag, or other warning, still such warnings are no guaranty of safety. A motorist or pedestrian is still required to exercise ordinary care in attempting to cross the tracks. If he relies upon not hearing or not seeing a train or a signal, and takes no further precaution, he does so at his own risk. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 435, 45 P.2d 183; Koster v. Southern Pacific Co., 207 Cal. 753, 763, 279 P. 788; Collom v. Bloch, 70 Cal.App. 33, 36, 232 P. 486. If a traveler is familiar with a railroad crossing, damages for injuries sustained there may not be recovered on the ground of a lack of warning of the perils. A person approaching a railroad track knows he is in the presence of danger. He must therefore take advantage of every reasonable opportunity to look and listen before going upon the roadbed. He cannot rely upon either the custom or the duty of an engineer to give signals. He has no right not to look or not to listen because he has heard no such signals. He is not entitled to rely upon the engineer's performance of his duty ‘so as to relieve him from the necessity of looking if he does not hear, and of stopping if he cannot see.’ 207 Cal. 753, 765, 279 P. 793; Koch v. Southern Calif. Railway Co., 148 Cal. 677, 680, 84 P. 176, 4 L.R.A.,N.S., 521; Green v. Los Angeles Terminal Railway Co., 143 Cal. 31, 35, 76 P. 719; Hutson v. Southern Pacific Railway Co., 150 Cal. 701, 704, 89 P. 1093; Herbert v. Southern Pacific Co., supra; Larrabee v. Western Pacific Railway Co., 173 Cal. 743, 748, 161 P. 750. It is the duty of a motorist on any highway to exercise a care commensurate with the perils known by him to inhere in the premises occupied by railroad tracks and to look and listen until he sees that it will be safe for him to proceed. Christianson v. Southern Pacific Co., 133 Cal.App. 515, 520, 24 P.2d 536.

In New York Lubricating Oil Company v. United Railroads of San Francisco, 191 Cal. 96, 215 P. 72, the driver of the truck, fully aware of the approach of the electric car, closed his eyes to the danger of trying to cross the track and drove his truck into the path of the on-coming train. Since he could have stopped his truck at any time prior to the collision within a distance of three feet, his failure to do so was negligence and a proximate cause of his injury. Also, in Dolton v. Green, 72 Cal.App.2d 427, 164 P.2d 795, the plaintiff, headed west, stopped at a stop sign, 58 feet from the point on the tracks where he was to cross. The train was then a block away, coming eastward at a speed of 50 miles an hour. He proceeded to turn south onto the tracks behind another automobile which, in stopping for vehicular traffic, brought him to a standstill on the tracks as the train was coming 200 feet distant. Although he was in a safe position 58 feet from the tracks and in approaching the point of impact he could have stopped within 12 feet, he heedlessly continued into the jaws of danger and thereby contributed to his own injuries.

Judgment affirmed.


1.  While appellant complained that the accident occurred at a point 150 feet north of Randolph Street on Eastern Avenue, the fireman Plumley testified it happened about 1,000 feet north of Randolph on the Angelus Paper track spur. This discrepancy is not vital to the principles involved.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

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