NELSON v. SOUTHERN PAC CO (1936)

Plaintiff was seriously injured in a collision between her automobile, which she was driving on Stockton avenue in the outskirts of the city of San Jose across the tracks of the defendant Southern Pacific Company, and its passenger train operated by its engineer and fireman, also named as defendants. Her complaint charged that the collision was caused by the defendants' negligence in operating the train at an excessive speed, in violation of a city ordinance, and without sounding a bell or whistle as required by section 486 of the Civil Code. The answer denied such negligence and affirmatively alleged that plaintiff was negligent and that her negligence proximately contributed to the collision. After trial upon these issues, the jury returned a general verdict in favor of defendants and also a special verdict finding that plaintiff was negligent and that her negligence contributed to the accident. Her motion for a new trial having been denied, plaintiff appeals from the judgment in favor of defendants, entered in accordance with the verdict.

Plaintiff argues that the judgment should be reversed because erroneous instructions proposed by defendants were given, proper instructions proposed by her were refused, evidence offered by her on the issue of defendants' negligence was erroneously excluded, and the court instructed the jury without the presence of her counsel. In reply, the defendants principally urge that the judgment should be affirmed, because plaintiff's own testimony conclusively shows that she was guilty of contributory negligence as a matter of law. If the defendants are correct in this contention, the judgment must be affirmed, because, even conceding the court erred in its instructions, plaintiff was not prejudiced thereby, for she was not entitled to recover. Hamlin v. Pacific Electric Ry. Co., 150 Cal. 776, 89 P. 1109; Dougherty v. Union Traction Co., 23 Cal. App. 17, 136 P. 722. Any error in the exclusion of evidence bearing upon the question of defendants' negligence is likewise harmless if plaintiff was guilty of contributory negligence as a matter of law, since it could not have affected the result. Fraser v. California Street, etc., Co., 146 Cal. 714, 81 P. 29; Meredith v. Key System Transit Co., 91 Cal.App. 448, 267 P. 164.

At the time of the accident Stockton avenue was a public street in the city of San Jose, running roughly north and south and was crossed diagonally by five sets of tracks running approximately east and west. On either side of the crossing it was unpaved and considerably wider than at the crossing. The traveled or paved portion of the avenue across the tracks was 33 feet in width measured parallel with the tracks, and 22 feet in width measured at right angles to the road. The tracks were of standard gauge, that is, the distance between the rails of each track was 4 feet 8 1/2 inches, and the width of each rail was 3 inches. The distance between each track was 13 feet center to center. In crossing from north to south, as plaintiff did, a person would pass over first two freight tracks, next, the westbound passenger tracks, then the eastbound passenger tracks, and, lastly, a third freight track. Except in crossing public streets, the tracks were located on a private right of way. The tracks were straight for 6,500 feet westerly of the crossing.

A city ordinance prohibited the operation of a train at more than 12 miles per hour across a public street, unless such crossing were protected by a flagman, gates, or other mechanical device. It was stipulated that the Southern Pacific Company had not so protected this crossing. All estimates of the train's speed over the crossing exceeded the limit fixed by the ordinance. The engineer of the train involved in the accident estimated such speed at between 25 and 30 miles per hour; a witness for the plaintiff at between 25 and 30 miles per hour; two railroad employees at between 40 and 45 miles per hour; and two former employees at between 35 and 40 miles per hour. The operation of the train at a speed in excess of the rate specified in the ordinance constituted negligence as a matter of law. Lininger v. San Francisco, etc., R. Co., 18 Cal.App. 411, 418, 123 P. 235; Simoneau v. Pacific Electric Ry. Co., 166 Cal. 264, 136 P. 544, 49 L.R.A.(N.S.) 737; Switzler v. Atchison, etc. Ry. Co., 104 Cal.App. 138, 285 P. 918.

The testimony as to ringing of a bell or the blowing of a whistle, as required by section 486 of the Civil Code, by the passenger train, is in conflict. The plaintiff testified she heard neither its bell nor whistle. Such negative testimony was sufficient to raise a conflict with the following positive testimony, and to support a finding by the jury that neither the bell nor the whistle was sounded. Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 134 P. 709; Keena v. United Railroads, etc., 197 Cal. 148, 239 P. 1061. Several witnesses for the railroad stated that they heard a crossing whistle, but since none could locate the train at that time it is uncertain whether the blowing of the whistle occurred at the distance from the crossing specified in the Code section. But this section, by its express terms, does not require that a whistle be sounded in cities. Jones v. Southern Pacific Co., 74 Cal.App. 10, 239 P. 429. The fireman of the train stated positively that the bell had been ringing continuously after the last stop, which was admittedly for a greater distance than 80 rods from the crossing. A railroad plumber said he did not know whether the bell was ringing. The conflict as to the ringing of the bell presented to the jury a question of fact as to whether the Code section had been violated. Failure to ring the bell as required by the section was prima facie negligence on the part of the railroad. Parker v. Southern Pacific Co., 204 Cal. 609, 269 P. 622.

Defendants do not seriously dispute the sufficiency of the evidence to establish their negligence, but they strenuously argue that plaintiff's own testimony convicts her of negligence proximately contributing to the accident. Her description of her conduct immediately preceding the collision follows: The accident occurred in the early afternoon of a sunny spring day. As she, in driving her automobile southerly, came to the crossing, she saw a freight train on the first, or nearest track, backing up in an easterly direction over the crossing. She stopped her automobile with its front 8 feet from the first rail, so that, as seated, she was 12 feet northerly of those tracks, and remained stationary for probably two or three seconds. Looking to her left or easterly, she saw the freight train standing still. She next looked to her right, or westerly, and saw no train in sight, although she could see down the tracks for a quarter mile. She never thereafter looked to her right. Then she started across the tracks in second gear at about 4 or 6 miles per hour. As she crossed the first tracks, she observed the freight locomotive less than 100 feet easterly of the crossing and another locomotive on the second tracks possibly 130 feet easterly of the crossing. As she reached the second tracks, she heard a succession of shrill whistles and some puffing of engines, letting off steam. It seemed to her that there was immediate danger so she hesitated slightly and looked intently to her left. She could not tell whether the engine on the second track was coming towards her, but thought the whistling meant for her to get out of its way and that it was coming towards her. She continued to cross as she wished to get out of the crossing. She remembered nothing thereafter.

Defendants' evidence contradicted plaintiff's testimony in all details, but such conflicts will be ignored. However, that evidence must be considered for additional facts as to which her testimony is silent. Where statements as to such facts differ, that version which is most favorable to her will be chosen. It is undisputed that the front of the automobile was struck by the left side of the forward part of the engine of the passenger train, which was traveling easterly on the fourth track. This train came from her right and the automobile collided with the side of the engine which was nearest to her. The distance from the outside edge of the first rail of the first track to the point of collision was approximately 65 feet. She testified that she stopped her automobile so that its front was 8 feet northerly of this first rail. Hence the distance she traveled, from the point of her observation to the right to the collision, was 73 feet. Her lowest estimate of her speed in crossing the tracks was 4 miles per hour and her highest estimate of the time she waited to make her observations was 3 seconds. Since, at a speed of 4 miles per hour, she would travel 5.86 feet per second, it would take 12.45 seconds to cover the 73 feet. Adding 3 seconds thereto, it is seen that 15.45 seconds was the longest time which could have elapsed between the time she looked down the track for a quarter of a mile and the time she was struck. The highest estimate of the fastest speed ever attained by the passenger train was given by its engineer, who stated that it was traveling at between 45 and 50 miles per hour before he applied the emergency brakes at the fireman's warning of danger. Since at a rate of 50 miles per hour the train covered 80.66 feet per second, 16.36 seconds was the shortest time required for it to traverse the distance of the quarter mile which was within plaintiff's range of vision. Obviously the train must have been visible if she had used ordinary care in making her observation. Her positive statement that she did not see the train must therefore be disregarded. Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 P. 513. She was as much negligent in failing to see the train as she would have been had she failed to look. Bibby v. Pacific Electric Ry. Co., 58 Cal.App. 658, 209 P. 387.

Plaintiff seeks to escape this conclusion by arguing that her attention was diverted to the engine on the second track by the whistling and the escape of steam, which she heard as she passed in front of it. Such confusion and her fear of immediate danger, engendered thereby, might have excused her failure to then look to her right, and thus presented a question of fact as to whether she was negligent then in failing so to do. 52 C.J. 323, 493. But such conditions, occurring subsequently, did not affect her in looking to the right at the time she stopped, nor did such distraction prevent her from looking to her right during the next 5 seconds, in which she went at least 30 feet to strike the engine on the fourth track. Since plaintiff was guilty of contributory negligence as a matter of law, it becomes unnecessary to determine whether the court erred in its instructions or in the exclusion of evidence.

In support of her motion for a new trial, plaintiff filed an affidavit by one of her attorneys, in which he alleged upon information and belief that the jury, after retiring for deliberation, had requested, through the bailiff in charge of them, further instructions upon contributory negligence, and that the court had conveyed such instructions orally through the bailiff without bringing them into open court. Such affidavit based upon information and belief was not competent proof of the facts stated and was unavailing for any purposes. Gay v. Torrance, 145 Cal. 144, 78 P. 540. At the argument the court stated that the “bailiff brought to me the request of the jury while I was sitting on another case, and I instructed the bailiff to inform the jury that they must find both the special and general verdict.” Conceding that the action of court in communicating privately with the jury was an irregularity in procedure, no prejudice resulted and therefore such error was harmless. Soukoian v. Cadillac Taxi Co., 68 Cal.App. 604, 229 P. 1015.

Judgment affirmed.

GRAY, Justice pro tem.

We concur: TYLER, P. J.; CASHIN, J.