WHINERY v. SOUTHERN PACIFIC COMPANY

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

Rosalee WHINERY, Kenneth Whinery, a minor, Julie Whinery, a minor, and through their Guardian Ad Litem, Rosalee Whinery, Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 25686.

Decided: January 09, 1970

Bostwick & Rowe, Everett P. Rowe, San Jose, for appellants. Hoge, Fenton, Jones & Appel, Edwin D. Jones, Jr., San Jose, for respondent.

Plaintiffs, the widow and three children of Albert Whinery, deceased, have appealed from a judgment, based on a jury verdict, and from an order denying a motion for judgment notwithstanding the verdict, in an action brought by them against defendant Southern Pacific Company for damages for the wrongful death of the deceased.

The material facts are not in dispute.   Deceased was a passenger in his employer's truck which was being driven by a fellow employee.  While crossing railroad tracks in the City of Gilroy the truck was struck by a train operated by the Southern Pacific Company.   Deceased died instantly in the collision.   The train was traveling at a speed of 55 miles per hour.   An ordinance of the City of Gilroy provided that it was unlawful for a railroad train to travel at a speed over 35 miles per hour within the corporate limits of that city.   No legal excuse was offered by the railroad company for the speed violation.

At the close of the trial plaintiffs moved that the jury be directed to return a verdict in their favor on the issue of liability.   The motion was denied.   The court then instructed the jury, inter alia, that the negligence, if any, of the truck's driver could not be imputed to deceased, that as a matter of law deceased was not guilty of contributory negligence, and that since the defendant railroad company had operated its train in excess of the permitted speed it was guilty of negligence per se.   The jury were then instructed that the violation of the ordinance was of no consequence unless they found it to be a proximate cause of the death of decedent.   The jury, as we have indicated, returned a defense verdict.

 Plaintiffs correctly point out that the subject ordinance of the City of Gilroy was obviously designed to prevent railroad trains from colliding with persons or vehicles crossing the railroad right-of-way.   They contend, as a matter of law, that defendant's negligence in violating the ordinance was a proximate cause of the accident and of decedent's death.   This being so, they insist that no factual issue remained on the question of liability, and that therefore the court erred in not granting their motion for a directed verdict on that issue.   In support of their argument they cite the case of Valerio v. Jahura (1961) 191 Cal.App.2d 159, 12 Cal.Rptr. 296.

 The rule which we consider applicable to this case appears to have been first stated in Norman v. Virginia–Pocahontas Coal Co. (1910), 68 W.Va. 405, 69 S.E. 857 (overruled on unrelated point by Pitzer v. M.D. Tomkies & Sons (1951), 136 W.Va. 268, 67 S.E.2d 437, 442).   There, in disregard of a statute prohibiting boys under 14 years of age from working in coal mines, such a boy was so employed.   He later was injured in the course of his employment.   In an action based upon the accident the company contended that the evidence showed no causative relation between its violation of the statute and the boy's injuries.   The court held otherwise, stating (p. 858):

“The point is one of first instance with us.   We adopt the view that seems consonant with reason.   Briefly stated, it is this:  The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury.   The true question to be determined in an action based upon a failure to obey a statute like the one under consideration is:  Did the unlawful employment cause the injury?   The trial of the case must be guided by this question.   If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury.   If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the non-observance of the law.  * * *”  (Emphasis added.)

Citing Norman v. Virginia–Pocahontas Coal Co., supra, the editors of American Jurisprudence (and its predecessor work, Ruling Case Law) thereafter phrased the rule in like manner:  “If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury.   If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law.  * * *” (38 Am.Jur., Negligence, § 166, p. 838.)   The rule as announced by Norman v. Virginia–Pocahontas Coal Co., supra, 69 S.E. 857, and American Jurisprudence, has been followed by Franklin v. Houston Electric Co. (1926), Tex.Civ.App., 286 S.W. 578, 580;  Tarr v. Keller Lumber & Construction Co. (1928), 106 W.Va. 99, 144 S.E. 881,883, 60 A.L.R. 570;  Janof v. Newsom (1931) 60 App.D.C. 291, 53 F.2d 149, 152;  Baltimore & O.R. Co. v. Green (1943, 4th Cir.) 136 F.2d 88, 91;  Van Pool v. Industrial Commission (1954), 267 Wis. 292, 64 N.W.2d 813, 814–815;  Tagenby v. Altoona Aviation Corporation (1967, W.D.Pa.) 268 F.Supp. 599, 606–607;  Blue Grass Restaurant Company v. Franklin, Ky., (1968) 424 S.W.2d 594, 597.

Other courts have considered the same problem.   In Langlois v. Rees (1960), 10 Utah 2d 272, 351 P.2d 638, 641, where the plaintiff violated a statutory standard designed to prevent the kind of accident which was the basis of her action, the court stated:  “Plaintiff's negligent act in violating the right of way is a proximate cause of her injury unless defendant is unable to assert the defense of contributory negligence because of his own conduct.   The negligent violation of a statutory standard of care is usually the proximate cause of injury if the accident occurring is the accident which the statute is designed to prevent.   The right of way statutes are designed to prevent an accident by two persons both otherwise lawfully on the roadway reaching the same place at the same time.”

And in Unmus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N.W.2d 42, 45, the court wrote:

“Of course it can seldom be demonstrated to a mathematical certainty that the victim would not in some way manage to get into trouble even if the other party had performed the duty to provide safeguards, but it is not required that evidence be carried to the point of proof that the safety device would certainly have prevented the accident and, conversely, that its absence certainly caused it.   Leaving contributory negligence out of the question for the moment, our decisions, and those of other jurisdictions over the years, demonstrate that when one owing a duty to make a place or an employment safe fails to do it and that accident occurs which performance of the duty was designed to prevent, then the law presumes that the damage resulted from,—was caused by—the failure.   The presumption may be rebutted, but if not rebutted by evidence, the plaintiff has met his burden of proof.  ‘* * * If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law. * * *’ ”

Valerio v. Jahura, supra, 191 Cal.App.2d 159, 12 Cal.Rptr. 296, cited and relied upon by plaintiffs, also closely follows the rule of Norman v. Virginia–Pocahontas Coal Co., supra, 68 W.Va. 405, 69 S.E. 857.   In that case the defendant, driving on the wrong side of a double white line on a two-lane street in violation of a statute and without legal excuse, continued in that manner into an intersection.   There the plaintiff, traveling in the same direction, made a left turn striking defendant.   Discussing this situation the court said (p. 162):  “The dangerous consequences of a driver's pulling alongside another vehicle on the left side and in the wrong lane at the approach to an intersection are so evident that the legislature prohibited the practice by enacting the Vehicle Code sections referred to above.   Furthermore, defendant was in the process of illegally passing in the wrong lane and over the double line at the very instant the collision occurred.   How then could the negligence of plaintiff's driver be the sole proximate cause of the accident?   Since defendant's negligence involved the violation of three statutes without excuse, which violations continued and were operating at the very moment of impact, his conduct not only constituted negligence but as a matter of law was a proximate cause of the accident.  * * *”  (Emphasis added.)

Persuaded by the authority to which we have referred, we hold it to be the law of California that if the very injury which was intended to be prevented by the violated statute has occurred, that injury as a matter of law must be considered as having been proximately caused by the nonobservance of the law.

 It is accordingly concluded that the trial court erred, under the facts of this case, in submitting the issue of proximate cause to the jury and in not granting plaintiff's motion for a directed verdict on the issue of liability.

There is no reason to believe that other claimed errors will recur at a retrial;  we therefore do not pass upon them.

The judgment is reversed;  the cause will be retried on the issue of damages alone.   The appeal from the order denying the motion for judgment notwithstanding the verdict now being moot, such appeal is dismissed.   Appellants will have their costs on appeal.

ELKINGTON, Associate Justice.

MOLINARI, P.J., and SIMS, J., concur.