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GIBSON v. SOUTHERN PACIFIC COMPANY

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

Woody GIBSON, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

No. 16295.

Decided: June 24, 1955

Fitz-Gerald Ames, Sr., San Francisco, for appellant. R. Mitchell S. Boyd, Dunne & Phelps, San Francisco, for respondent.

Action for damages for personal injuries sustained by plaintiff when struck by defendant's train. Motions for nonsuit and directed verdict were denied. The jury awarded plaintiff $75,000. Defendant moved for judgment notwithstanding the verdict and for new trial. The court granted the former and denied the latter. Plaintiff appeals from the judgment notwithstanding the verdict.

Questions presented.

1. Was plaintiff contributorily negligent in assuming that all portions of the railroad pathway were safe from overhang of passing trains?

2. Should evidence of suction power of the train have been admitted?

3. Was the court inconsistent in denying defendant's motion for new trial but granting its motion for judgment notwithstanding the verdict?

Facts.

Except as to just when the train's whistle was blown there appears little, if any, conflict in the evidence. Westerly, opposite Bay Meadows race track, defendant's railway tracks run north and south. On the West side of the West rail and distant 1 foot 9 inches therefrom, defendant maintains an asphalt walk or pathway 8 feet wide, about at the level of the ties except at the Hillsdale station and Bay Meadows crossing platforms, where the asphalt is level with the tracks. This pathway connected the much wider platform at the Hillsdale station with that at the Bay Meadows crossing. It was used both for walking between those platforms, and for boarding trains which stopped there on occasion to pick up race track patrons. The engine which struck plaintiff had on overhang which extended 1 foot 2 1/2 inches over the walk.1 The edge of the pathway was 1 foot 9 inches from the nearest rail. The walk extends southerly from the Bay Meadows crossing (an infrequently used commuter stop) some 1200 feet to the Hillsdale station. The tracks here and for a considerable distance southerly are straight. The pathway is used by passengers and other pedestrians. This fact was well known to defendant. (Defendant concedes it owed a duty of due care to persons using the pathway.) Near the station for a distance of 380 feet and near the crossing for a distance of 230 feet a white line extends along the pathway sufficiently far from the rails to clear the engine's overhang. In the interveing distance of approximately 600 feet there is no white line. Near sundown, with the weather clear and light, a slight breeze blowing about 5:50 p.m., plaintiff had walked across the crossing intending to go to Bay Meadows track. As he got to the gate of the track, the crowd started coming out. He noticed a train standing to the north. He assumed it was headed north. Assuming that the races were over, he retraced his steps to the west side of the tracks. While on the crossing he seemed to hear a couple of train whistles. He made no assumption as to their source. He walked south on the pathway. He heard a train whistle, probably a little deeper in tone than the whistle or whistles he heard at the crossing. (This was 10 to 15 seconds before he was struck.) He continued walking forward and ‘took probably a half step to the right’ (away from the track). He heard no sound of grinding such as would be caused by the application of locomotive brakes. The half step to the right placed his left foot about 22 inches away from the track edge of the asphalt. He has a faint recollection of being ‘spun,’ feeling heat in his face and seeing a wheel of the engine. The next thing he remembered he was talking to a San Mateo policeman after the accident. He was then lying to the west of the pathway at a point about half way between the crossing and the station. This was plaintiff's first time on the pathway. He did not know that a locomotive would overhang the pathway. Plaintiff suffered serious injuries to his shoulder, arm, elbow and his leg was ‘mashed.’

The engineer died prior to trial so his story is unknown. The fireman, whose view was obstructed by the engine for the last 300 feet before the impact, at that point observed a group of people walking southerly along the pathway, their backs towards the train. He could not tell how close they were to the edge. People ‘too often’ walk alongside the track there, fairly close. The usual speed at this point is 50 miles per hour. No stop at either Hillsdale station or Bay Meadows crossing was intended. Immediately north of the crossing there is a whistle post. Admittedly the whistle was blown there. There was evidence that the whistle was not sounded after the engine reached the crossing. One Harland, walking north on the pathway, passed plaintiff walking south. He heard a whistle, turned around and started walking south. At that time the train was about 600 yards away. When he was about 10 to 20 feet behind plaintiff he heard the whistle again. The train was then possibly 300 yards away. He did not have too much of an idea on that. Harland turned over to the right and stopped. When the train passed him he saw some part of the front part of the engine strike plaintiff. Plaintiff was then about 2 1/2 feet from the edge of the pathway nearest the rail. Harland had the impression that plaintiff was sucked into the train. Harland then stated that the whistle was going continuously until the time of the accident.

A railway ‘red cap’ walking on the pathway saw plaintiff about 350 feet ahead of him. Plaintiff was walking close to the track edge of the asphalt. The whistle was blowing continuously. The train hit plaintiff and spun him to the right.

Defendant's maintenance official testified that prior to May, 1946, there had been a gravel path which was 3 feet 6 inches in from the point where the track edge of the asphalt now is. The old path was completely clear of the engine overhang.

1. Contributory negligence.

The judgment notwithstanding the verdict was granted on the theory that plaintiff was guilty of contributory negligence as a matter of law. The evidence shows without conflict that plaintiff walked some 600 feet down the pathway close to the railside edge of the pathway. Although he admittedly heard a train whistle when he was at the crossing before starting down the pathway he made no effort to locate it or to learn if there was any train approaching from his rear. At no time during his movement down the pathway did he glance behind to observe if there were any trains approaching. About 10 to 15 seconds prior to the accident he heard another whistle which ‘probably sounded a little deeper in tone’ than the previous one. He then continued walking forward and took a half step away from the rails ‘to be safe.’ This placed his foot nearest the track approximately 22 inches from the edge of the asphalt and approximately 3 feet 7 inches from the nearest rail. He continued on in this location until hit. Although he heard a whistle and felt it necessary to do something ‘to be safe,’ he did not look around to determine where the whistle came from or to see if he were in a safe position.

If defendant owed plaintiff the duty of maintaining the pathway free from danger from overhang of trains and suction, then plaintiff could not have been guilty of contributory negligence2 for if plaintiff had the right to assume that all portions of the pathway were safe, then under the facts of this case he was under no duty to look for approaching trains.

The question here is, by the constructing of a pathway close to its tracks does a railroad impliedly represent to users thereof that all portions of the pathway are safe, thereby relieving the user from the necessity of watching for approaching trains when walking close enough to the tracks to be struck by the overhang of the train, or to be drawn into the train by suction? In McKeown v. Northwestern Pac. R. Co., 20 Cal.App.2d 324, at pages 326–327, 66 P.2d 1250, at page 1251, the court said: ‘* * * it is the uniform rule that where a passenger places himself so near the edge of a railroad platform as to be within the line of the ordinary overhang of a train, he contributes to the injury, and other things being equal, cannot recover. [Citations.]’

While the facts in our case are distinguishable from those in the McKeown case, that difference would not change the apparent universalness of the rule, see cases cited in the McKeown case, 20 Cal.App.2d at page 327, 66 P.2d at page 1251, and the cases hereafter discussed, nor the application of the principle to the facts of our case. In the McKeown case, the plaintiff was familiar with the station platform and with the normal overhang of engines, while here plaintiff was using the pathway for the first time and knew nothing of engine overhang. In the McKeown case, although denied by the plaintiff, there was testimony that as the train approached she deviated from her course to approach nearer the edge of the platform. In our case, after hearing a whistle, plaintiff took a half step away from the track. In the McKeown case the engine overhang was either flush with the edge of the concrete platform, or overhung it an inch; thus the plaintiff's arm must have extended either beyond the platform or within an inch of its edge. In our case the engine overhung the pathway 14 1/2 inches. Plaintiff's feet were probably 2 1/2 feet from the pathway's edge. Only his elbow extended into the space occupied by the engine's overhang. The other differences between the two cases bear on defendant's negligence rather than on plaintiff's duty.

In Holmes v. South Pac. C. Ry. Co., 97 Cal. 161, 31 P. 834, the railroad tracks were in the street. There was a space of 3 feet between the sidewalk at the station and the nearest rail. The plaintiff was walking in this space. When the whistle sounded the plaintiff stepped partly upon the track and was hit. Again, here, the facts are not similar to ours but the court pointed out that there are many cases supporting the principle, 97 Cal. at page 167, 31 P. at page 835: ‘A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to be struck by a passing train, without the exercise of constant vigilance in order to be made aware of the approach of a locomotive, and thus be enabled to avoid receiving injury; and the failure of such a person, so situated with reference to the railroad track, to exercise such care and watchfulness, and to make use of all his senses in order to avoid the danger incident to such situation, is negligence per se.’

In Norfolk & W. Ry. Co. v. Hawkes, 102 Va. 452, 46 S.E. 471, because of a curve in the track, the projection from the train overhung the platform varying from 1 1/4 to 10 inches and at the point where the plaintiff was struck it was 6 1/2 inches. The plaintiff knew that the train was approaching. Of a person's duty at a railroad platform the court said, 46 S.E. at page 472: ‘It is manifest that this duty requires the railroad company to construct its platform sufficiently near to the rails that it will afford to passengers, including the aged and infirm, a safe exit to and from the trains. And it is a matter of common knowledge that in performing this duty the platforms along the best-regulated railroads are built so near the rails that the projections from the engines and cars will overlap, to some extent, the edge of the platform. While the extreme edge of the platform is perfectly safe for passengers when occupying it for the purpose to which it is manifestly adapted, it is a matter of common knowledge that it is a place of danger when occupied while trains are passing or are likely to pass.’

In Higgins v. Erie R. Co., 89 N.J.L. 629, 99 A. 98, the plaintiff was familiar with the platform and the coming and going of trains there. He was drawing a hand truck on the platform and either drew it so near the platform's edge that it was struck by the engine tender's overhang or in turning he brought the truck against the tender. ‘The law is well settled in this state that where a person places himself so near the edge of a railroad platform as to be within the line of the ordinary overhang of a properly constructed platform and engine he contributes to the injury, and the company is not liable for the injuries he may suffer from such negligent exposure to danger.’ 99 A. at page 99.

In Long v. Delaware L. & W. R. Co., 1941, N.J.L. 207, 21 A.2d 824, the court quoted the above statement in holding negligent a plaintiff who was struck by a handrail of a passing car, while standing on a platform 19 feet 2 inches wide between two sets of tracks.

In Ratliff v. Chesapeake & O. Ry. Co., 6 Cir., 1940, 116 F.2d 155, the plaintiff standing on the station platform was trying to flag the approaching train so that she could board it. She was struck by a crossbeam on the front of the engine which overhung the platform 1 1/2 or 2 feet. It was claimed, as here, that the platform as constructed was an implied assurance that any portion of it was safe from passing trains. The court said 116 F.2d at pages 156–157: ‘None of the cases cited by appellant holds that such a facility as is here involved,—entirely adequate and safe when used as ordinary persons would use it,—is unsafe merely because it does not prevent careless persons from putting themselves in positions of danger.’

In Ferran v. Southern Pac. Co., 3 Cal.2d 350, 44 P.2d 533, the court referred to the general rule quoted above in Holmes v. South Pac. C. Ry. Co., 97 Cal. 161, 31 P. 834, but held it did not apply to persons required to cross intervening tracks to board cars who are injured while doing so.

As contra to the principle enunciated in the foregoing cases, plaintiff cites the following: Chunn v. City & Suburban Railway, 207 U.S. 302, 303, 28 S.Ct. 63, 52 L.Ed. 219. There the platform which was customarily used by passengers intending to use the Washington car was one between two sets of tracks and was 7 feet 10 inches wide. The steps of defendant's cars projected 2 feet 2 inches over the platform, so that when two cars passed each other at this point (which was the situation when the plaintiff was hurt) the clear space left for the passenger to stand in was only 3 feet 6 inches. The court held that ‘the margin of safety was narrow and left little allowance for the infirmities of mankind. In the confusion of two cars approaching from opposite directions it is too much to expect nice calculations of distances. It is not to be wondered at that in the attempt to escape the one the plaintiff fell foul of the other.’ 207 U.S. at page 308, 28 S.Ct. at page 65. ‘Nor was the plaintiff necessarily wanting in due care by taking her place between the tracks. It was the usual place from which entrance to the Washington car was made. It was safe enough under ordinary circumstances. It was made unsafe only by reason of the defendant's negligent act in running another car rapidly by. The plaintiff had the right to assume * * * that when it [the defendant] stopped one car and thereby invited her to enter it, it would not run another rapidly by the place of her entrance and put her in peril.’ 207 U.S. at pages 308, 309, 28 S.Ct. at page 65. The court did not discuss the general rule of passengers on station platforms, nor even the exception stated in Ferran v. Southern Pac. Co., supra, 3 Cal.2d 350, 44 P.2d 533 (passengers crossing tracks) but rested its decision primarily on the narrowness of the platform provided for its patrons. In many details the facts in Lagomarsino v. Market Street Ry. Co., 69 Cal.App.2d 388, 158 P.2d 982, were similar to those in the Chunn case, and the ruling was the same. A somewhat similar case to the Chunn case is Edwards v. Union Pac. R. Co., 1913, 90 Kan. 183, 133 P. 728. There the court's decision was based principally upon the fact that the station platform where the plaintiff was required to go because of the crowded condition of the rest of the platform, and where she was struck by a locomotive overhang of about 27 inches, was less than 5 feet wide between the rails and a depot bow window. The trial court had given an instruction on contributory negligence embodying the general rule. In holding that the instruction was improper under the circumstances of the case, the court said 133 P. at page 729: ‘Had the evidence shown that the platform space about the window had been comparatively free and unobstructed, and that plaintiff, with ample opportunity to choose a safe place to walk, had put herself or remained in a position of obvious danger from incoming trains, the instruction would have stated the law correctly. Her testimony, however, is that she was endeavoring to get past the narrow space in front of the window, and because of the crowd of persons about her she was prevented from realizing her danger * * *.’ Thus, the decision cannot be construed as applying to the facts of our case.

Nor is Jaques v. Southern Pac. Co., 8 Cal.App.2d 738, 48 P.2d 63, in point here. There two sets of railroad tracks were maintained in the street, each set operated by a different company. Between the tracks there was a safety zone 3 feet 10 inches wide. However, the defendant's cars overhung this zone so that there was less than 22 inches left for a person to stand in. While the plaintiff was standing in the safety zone awaiting an approaching car of the other company, defendant's train passed by. Its great speed drew the coat which she was wearing into contact with the train so that she lost her balance and was thrown or fell under the wheels. The court in upholding a judgment in the plaintiff's favor did not discuss the law of contributory negligence involved other than to say, 8 Cal.App.2d at page 740, 48 P.2d at page 64: ‘It is then argued that the respondent should have anticipated the danger from suction to a person standing near a railway track and that she was therefore guilty of contributory negligence. Manifestly, if the engineer, who had operated trains for more than thirty years, was not chargeable with knowledge of this particular danger, it cannot be said as a matter of law that an eighteen year old school girl should be deemed to have anticipated the same danger.’ It then stated that the question of contributory negligence was one of fact properly left to the jury—an entirely different situation from the one in our case, where on a sufficiently wide pathway plaintiff by walking dangerously near to the track, and without any effort to determine whether he was safe from train overhang or suction, chose to violate the rule which the cases hold is well settled, namely, that a person on a station platform must look out for a train's overhang.

In Becker v. City & County of San Francisco, 121 Cal.App.2d 723, 264 P.2d 133, while standing on a street curb at a regular bus stop the plaintiff leaned forward and his head came in contact with the side of a moving bus. Judgment for the defendant was affirmed. Apparently the case is cited by plaintiff here because the court approved an instruction to the effect that it would be negligence for the bus to be operated in such manner that any portion of it extended over the curb. Such a ruling, however, in no way minimizes the railroad platform rule heretofore mentioned.

In Campbell v. Yazoo & M. V. R. Co., 1909, 95 Miss. 309, 48 So. 618, the plaintiff stood on the concrete platform between the waiting room and tracks, his back to the tracks. He was struck by the engine bumper which overhung the platform 2 inches. It was held that “* * * being in a place where he is invited to be by the company, he has a right to suppose that he will be safe from collision with a train running on the track so long as he occupies a place on the platform, and the mere fact that plaintiff, while on the platform, did not look behind him for an approaching train, cannot be held evidence of contributory negligence * * *. Negligence is not imputable to a person for failing to look out for danger, when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended.” 48 So. at page 619. This case does not refer to the before-mentioned ‘uniform rule.’ McKeown v. Northwestern Pac. R. Co., supra, 20 Cal.App.2d 324, 66 P.2d 1250.

In Archer v. New York, N. H. & H. R. Co., 1887, 106 N.Y. 589, 13 N.E. 318, the plaintiff while on the station platform was struck by a car which overhung the platform 2 or 3 inches. It was held that the plaintiff could not be chargeable with negligence as a matter of law in ‘assuming there was nothing to make his position dangerous.’ 13 N.E. at page 321. No reference is made to the uniform rule. Moreover, it appears that the platform in the Archer case was one between railroad tracks and there was evidence that the plaintiff did not know and because of the peculiar situation was justified in not knowing that there existed the track upon which the train which injured him came.

Except as to situations of platforms between tracks where the rule is different than the one applicable here, plaintiff has cited and we have found no case holding that a person has the right to assume that a platform or pathway is safe from overhang of passing trains, except Edwards v. Union Pac. R. Co., supra, 90 Kan. 183, 133 P. 728, where it was held that the plaintiff forced by the crowd upon the platform to place herself in a position of danger would have been negligent had she not been forced to do so; and Campbell v. Yazoo & M. V. R. Co., supra, 95 Miss. 309, 48 So. 618, which does not refer to the platform rule. Moreover, these cases were decided many years before the court in the McKeown case, supra, stated that the rule was ‘uniform.’

Defendant's Engineer of Maintenance of Way and Structures testified that it is a general policy of defendant to paint lines on a pathway to mark danger points. This fact, however, does not change the rule regarding the fact that parties using such pathway may not assume that all portions are safe. While in this case there were white lines on the Hillsdale station and Bay Meadows crossing platforms, plaintiff at no time testified that he was misled by the absence of white lines between. Prior to the construction of the present pathway there had been a gravel pathway, all portions of which were clear of the engine overhang. There is no evidence that plaintiff knew of the white lines where they existed nor of the previous pathway. We can see no practical difference between a station platform and a pathway between platforms, so far as the duty of a railroad company to its users is concerned. Actually, it would appear that its duty at a station platform would be at least as high, if not higher, than on a pathway. Station platforms are places where many people gather, where there can be confusion and milling around. A pathway ordinarily has no such congestion.

Usually, of course, the question of contributory negligence is one for the jury and it is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from the evidence, that the court can say, as a matter of law, that contributory negligence is established. Zibbell v. Southern Pac. Co., 160 Cal. 237, 240, 116 P. 513. In view of the well settled rule as to station platforms, plaintiff's conduct under the circumstances leaves no possible inference other than that he was guilty of contributory negligence.

2. Train suction.

Plaintiff offered a qualified expert who would have testified to the ‘suction pounds pressure’ developed by a train traveling at 50 miles per hour (the speed maintained by the train which struck plaintiff) and which would have been exerted upon plaintiff, ‘taking into consideration the fact that * * * [plaintiff] was first hit and then spun facing back with his back to the train and then the amount of pressure that was exerted upon him to throw him into the train, together with his off-balance condition and together with his spinning motion would have been sufficient to pull him into the train.’ The court refused to admit the testimony. It is not clear to what issue this testimony would have related. Were it to the effect that suction initially might have pulled him into the train, it would be relevant on the question of defendant's negligence in driving a train at great speed alongside a platform on which there were a number of people.3 But the evidence was offered not to prove this, for it was proposed to relate only to what occurred after plaintiff was first struck. There could be no error in excluding it for this purpose, as there was no contention that plaintiff's injuries were not caused by the accident, so that just what occurred after he was first struck is not too important on the question of the negligence of either party.

3. Inconsistency of rulings.

Plaintiff contends that in denying defendant's motion for new trial but granting its motion for judgment notwithstanding the verdict, the court acted inconsistently, in effect, holding on the motion for new trial that the evidence was sufficient to support the jury's verdict, and on the motion for judgment notwithstanding the verdict that it was not, because as a matter of law the jury's finding that plaintiff was not contributorily negligent was not supported.

Section 629, Code of Civil Procedure, dealing with both of these motions, does not appear to meet the situation here. It provides what happens if the court (a) grants a new trial and denies judgment notwithstanding the verdict, (b) where both motions are denied. It appears to us that the effect of the trial court's action is a finding that if it was wrong in determining that plaintiff was guilty of contributory negligence as a matter of law, then it sees no reason for disturbing the jury's verdict and the judgment on that verdict would stand as the judgment in the case. We see no inconsistency in the court's action.

The judgment is affirmed.

I dissent.

The majority hold that, under the law as stated in McKeown v. Northwestern Pac. R. Co., 20 Cal.App.2d 324, 66 P.2d 1250, it must be held that plaintiff, as a matter of law, was contributively negligent. I cannot agree with this conclusion.

The jury decided that defendant was negligent and that plaintiff was not guilty of contributory negligence. Those are, of course, normally, fact questions. But the trial judge granted a judgment notwithstanding the verdict, holding that plaintiff was guilty of contributory negligence as a matter of law. Such a judgment is proper when and only when it can be said that there is no evidence or no reasonable inference from the evidence that would support a verdict for the plaintiff. The majority purport to follow these rules, but, in my opinion, violate them.

There can be no doubt that the implied finding of the jury that defendant was negligent is amply supported by the evidence. The majority assume that this is so, and defendant, in its briefs, does not argue to the contrary. The nature of that negligence is most important. In determining whether plaintiff acted as a reasonable man, it is important to know what defendant's duty was towards plaintiff and how, and under what circumstances, defendant violated that duty. The jury could have found that defendant was negligent not only in operating its train at 50 miles an hour under the facts, in failing to apply the brakes after defendant's engineer should have known of plaintiff's danger, and in possibly failing to sound the warning whistle properly, but the jury could also have found that defendant was negligent in building the pathway between the crossing and the station platforms in the manner it did.

What are the pertinent facts? Here was an area customarily used by large numbers of persons. At the Bay Meadows crossing, for the convenience of its patrons and others, a large area, flush with the rails, was constructed, with a white line painted on it that indicated the danger zone near the rails. This area could properly be designated a platform. A similar but larger platform, with a similar white line, was installed at the Hillsdale station. Between these two platforms, for a distance of approximately 600 feet, the defendant constructed what properly was called by many witnesses an asphalt ‘pathway’ or ‘walkway.’ This was constructed below the level of the rails at the level of the ties. It was 8′ wide and its closest edge was 1 9″ from the rails. The engine here involved overlapped the rails 2′ 11 1/2″, and overlapped the path 1′ 2 1/2″. The real issue in this case is whether, by so constructing the path, did the defendant impliedly represent to persons rightfully using it, that it was a safe place on which to walk? The plaintiff, as a reasonable man, saw the pathway and used it as it was intended to be used, as pathway between the two platforms. It should also be mentioned that the railroad right-of-way was quite wide in the area in question so that the path could have been constructed so as to be perfectly safe. The pathway, constructed as it was, to a reasonable man, amounted to an implied invitation to use it to walk between the two platforms. Included within that invitation was the implied representation that the entire pathway was a safe place to walk. Because of the nature of the construction, defendant invited plaintiff to use the pathway, and owed a duty to persons rightfully using it to maintain it in a safe condition. It violated that duty by allowing trains to travel over the area that substantially infringed on the paved portion of the pathway.

Now what does all this have to do with the issue of contributory negligence? Plaintiff, according to the majority, was guilty of contributory negligence as a matter of law because he walked too close to the edge of the path, in an area that he should have known was dangerous. The other facts in reference to contributory negligence were so clearly factual matters for the jury that they need not be further discussed. Now just where was plaintiff walking? Plaintiff's feet were nearly 3 feet from the tracks when he was hit. He was at least a foot and a half inside the path. How many people know that an engine overhangs the track for a distance of 3 feet? Until I read this record I had no idea that the overhang of an engine was 3 feet. Until I read this record I would have assumed that in walking 3 feet from the rails I was in a safe position. But, in addition to that reasonable assumption, here the railroad built the pathway 1′ 9″ from the tracks. As a reasonable man, the plaintiff could assume that this was a representation that trains did not overhang the rails more than 1′ 9″. Thus, in walking about 3 feet from the rails he could reasonably assume that he was safe. That is the end of the case so far as contributory negligence as a matter of law is concerned.

The majority, however, hold that the decision in McKeown v. Northwestern Pac. r. Co., 20 Cal.App.2d 324, 66 P.2d 1250, compels a finding of contributory negligence. That case dealt with an accident on a platform in the literal sense. Here we are dealing with a pathway. It may be that people know or should know that a platform, for the convenience of passengers in getting on and off trains and in loading and unloading baggage, must be constructed close to the rails and within the danger zone of overhanging equipment. In that sense a platform, of itself, may be a warning of danger. On that issue I express no opinion because it is not involved. A pathway is not a platform—in fact, it is an implied invitation to use it for the purposes it apparently was intended—to walk on. There are other factual distinctions with the McKeown case. These distinctions are fairly and fully set forth in the majority opinion, and need not be repeated here. When added to the basic distinction that the McKeown case was dealing with a loading platform while here we are dealing with a pathway, the conclusion seems inevitable that the issue of contributory negligence was a factual one. For this reason I would reverse the judgment notwithstanding the verdict.

FOOTNOTES

1.  It is interesting to note that although the witnesses referred to the area in question as a walk or pathway, counsel for both parties in their briefs and on oral argument refer to it as a ‘platform.’ We are accepting the witnesses' designation rather than that of counsel. As hereafter shown the duty of a railroad company at a station platform seems well determined. We have been unable to find any case involving a pathway between platforms.

2.  Defendant, although not conceding its correctness, is not attacking (except as it relates to the maintenance of the pathway) the jury's implied finding of negligence.

3.  If there were error in excluding it for this purpose, it was error without prejudice as there was ample evidence of defendant's negligence and the jury found defendant negligent.

BRAY, Justice.

FRED B. WOOD, J., concurs.

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