WHINERY v. SOUTHERN PACIFIC COMPANY

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

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

Civ. 25686.

Decided: February 06, 1970

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

OPINION ON DENIAL OF PETITION FOR REHEARING

After consideration of the petition for rehearing and the answer thereto we are of the view that we should further discuss certain issues which have been raised.

The general rule is stated in Cary v. Los Angeles Ry. Co. (1910) 157 Cal. 599, 108 P. 682, as follows: ‘A violation of [provisions of law] will establish negligence, and where injury results from such negligence a recovery may be had. But in every case the particular negligence to avail plaintiff must have some direct and causal connection with the injury complained of * * * although the violation of such a statute is negligence per se, there must be a causal connection between the unlawful act and the injury, which must be shown in the pleading and by the proof or the action fails. [Citations.]’ (157 Cal. at pp. 603–604, 108 P. at p. 684. See also, Berges v. Guthrie (1921) 51 Cal.App. 547, 549, 197 P. 356.)

This principle is recognized in the leading case quoted in our opinion by the language immediately following that which has been set forth, ‘But if the injury is one that happened by causes independent of the violation of the statute, it is not actionable on the basis of that violation. If an intervening event against which the statute evidently did not intend to provide, and the appearance of which was not anticipated by the spirit and purpose of the act, has in fact caused the injury, that event is plainly the proximate cause. * * * So as a matter of law it cannot be said that the employer is chargeable in damages with all injuries that result. The evidence must prove that he is chargeable—that the injury indeed proceeded from the unlawful employment.’ (Norman v. Virginia-Pocahontas Coal Co. (1910) 68 W.Va. 405, 409, 69 S.E. 857, 858.)

In Meincke v. Oakland Garage, Inc. (1938) 11 Cal.2d 255, 79 P.2d 91, the court adopted the following from the opinion of the Court of Appeal, ‘These facts are clear: 1. That plaintiff was violating an ordinance designed to prevent the very character or type of injury which plaintiff received; 2. that the violation of this ordinance continued to the very moment of impact; and 3. that the injury would not have occurred if plaintiff had not been violating the ordinance. Under such circumstances there is no room for reasonable minds to differ and plaintiff's violation of the ordinance becomes a proximate cause of his injury as a matter of law. [Citations.]’ (11 Cal.2d at p. 256, 79 P.2d at p. 92.)

Defendant in its petition for rehearing cites several examples of conduct, each of which might be deemed an independent intervening event which could render the speed of the train a remote cause or mere condition of the accident. It relies on the general principle that the issue of proximate cause is generally a question of fact. (See, Hixson v. International Harvester Co. (1963) 219 Cal.App.2d 88, 93, 32 Cal.Rptr. 905; Cowan v. Bunce (1963) 212 Cal.App.2d 48, 52–53, 27 Cal.Rptr. 758; and Shoemaker v. State of California (1962) 202 Cal.App.2d 379, 385, 20 Cal.Rptr. 812.)

Defendant has failed to point out any facts in this record which would indicate that the violation of the ordinance did not continue until the very moment of impact, or that the injury would not have occurred if the defendant had not been violating the ordinance. Under these circumstances the violation must be deemed as a matter of law at east a proximate concurring cause of the collision. (Meincke v. Oakland Garage, Inc., supra, 11 Cal.2d 255, 256, 79 P.2d 91; Cook v. Miller (1917) 175 Cal. 497, 500–501, 166 P. 316; Valerio v. Jahura (1961) 191 Cal.App.2d 159, 12 Cal.Rptr. 296; Hudgins v. Standard Oil Co. (1935) 5 Cal.App.2d 618, 622–623, 43 P.2d 597; Solko v. Jones (1931) 117 Cal.App. 372, 378–379, 3 P.2d 1028; Traylen v. Citraro (1931) 112 Cal.App. 172, 175–176, 297 P. 649; and Berges v. Guthrie, supra, 51 Cal.App. 547, 550, 197 P. 356.)

The petition for rehearing is denied.

PER CURIAM.