WILL v. SOUTHERN PAC CO (1940)

From an order granting defendants' motion for a new trial after trial before a jury in an action to recover damages for wrongful death, pursuant to the provisions of section 377 of the Code of Civil Procedure, plaintiffs appeal.

So far as material here the facts are:

Plaintiffs recovered a verdict against defendant Southern Pacific Company for the death of Clayton Roy Will, who was the husband of plaintiff Audys Will and the father of the other plaintiffs. His death resulted from injuries received in a collision between his automobile, in which he was riding, and a train owned and operated by the appealing defendant. The trial court granted a motion for a new trial, among others, on the ground that an error of law occurred during the trial. Sec. 657, subd. 7, Code Civ.Proc.

This is the sole question necessary for us to determine:

Did an error of law occur during the trial?

This question must be answered in the affirmative. The following instruction was given at the request of plaintiffs:

“In order to charge a railroad company with negligence for a defect in a signaling device at a crossing, which it is bound to keep in proper condition and repair, it must be shown to you that the railroad company had notice of the defect and that it failed for a reasonable time thereafter to repair such signaling device. Such notice may be actual or constructive. Actual notice is that notice which is shown to be actually given to a party; constructive notice is that notice which is imputed in law by the long-continued existence of a defective condition, should you find from the evidence that it did so continue to exist.” (Italics added.)

The foregoing instruction contained an erroneous statement of the law in the portion which we have italicized. Defendant was not “bound to keep” the signaling device which it maintained at the crossing “in proper condition and repair”. The law imposed upon defendant only the burden of using ordinary and reasonable care to keep the signaling device in repair. Since the instruction given at the request of plaintiff was erroneous, it was an error of law occurring during the course of the trial which sustains the order of the trial court in granting a motion for a new trial.

For the foregoing reasons the order is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.