CRAWFORD v. SOUTHERN PACIFIC CO (1934)

Plaintiff brought this action against defendants seeking to recover damages for personal injuries received when a truck driven by plaintiff collided with a freight train of the defendant company. The cause was tried by the court sitting with a jury. Defendants motion for nonsuit and defendants' motion for a directed verdict were duly made and denied. The jury rendered a verdict in favor of plaintiff in the sum of $15,000. Defendants' motion for judgment notwithstanding the verdict was denied, and, from the judgment entered upon the verdict, defendants appeal.

The main contention of appellants on this appeal is that respondent was guilty of contributory negligence as a matter of law, and, as we believe this issue to be determinative of this litigation, we need not discuss the other points urged by appellants.

The accident occurred at 2:40 p. m. on the afternoon of November 14, 1931, at a point where the double tracks of the defendant company cross Third street, a short distance north of Sixteenth street in the city and county of San Francisco. Third street runs in a general northerly and southerly direction. The ordinary type of railroad crossing signs were located near the tracks at either side of the highway. On the west side of the highway and north of the tracks stood a flagman's shanty and other structures.

Plaintiff was driving an automobile truck loaded with 300 boxes of apples in a northerly direction along Third street. He was following another truck at a distance of about 150 feet. The last-mentioned truck had cleared the tracks, but, as respondent approached, he collided with an engine hauling three box cars as said engine was proceeding in a westerly direction across Third street on the northerly track.

The evidence was conflicting in many respects, but on this appeal we must consider only the evidence most favorable to respondent. We will assume, therefore, that no flagman was present at the crossing and that the bell on the engine was not rung, for, despite the positive testimony of numerous witnesses who stated that the flagman was present and that the bell was ringing, respondent testified that he saw no flagman and heard no bell. We will further assume that a line of box cars was located on the southerly track on the easterly side of and extending into Third street, disregarding the conflict with respect to the exact number and location of said cars. According to respondent's testimony, said box cars obstructed his view of the approaching train on the northerly track until he was in close proximity to the crossing.

We may now consider the manner in which respondent approached and proceeded onto this crossing. In his complaint he alleged that he was familiar with the crossing “and was aware of the fact that a flagman was stationed at said intersection and had become accustomed to rely upon the signal of said flagman or flagmen that a train was about to cross said Third street, and to proceed across said railroad tracks when said flagmen omitted to signal the approach of a train.” On the trial respondent testified that, when he was 150 feet from the crossing, he looked and saw no flagman and “presumed that the crossing was clear.” Throughout his testimony are found similar expressions such as “I presumed the road was clear” and “I figured the coast was clear.” There was a conflict as to respondent's speed, but, taking his own testimony, he stated that before he crossed Sixteenth street he slowed down “and it was between 15, around 15 miles per hour, I could not have been going much faster than that, when I shifted into third and picked up a little speed before the collision, because when I went into third, I could roll along and I had my hand on the gear, fixing to come back into high to keep rolling, I could have almost come back into high when I seen the train. Then I applied my brakes with my emergency and applied my brakes standing on my clutch and brake, and of course that slowed my speed down, but about how fast I was going I could not say.” He stated that the point where he slowed down to about 15 miles per hour was “150 feet or better” from the scene of the accident. When asked if he gained any speed thereafter, he said, “I picked up a little speed, you are bound to when you shift and get into a lower gear and give it the gas, because I thought the way was open, was clear, and then I seen the train, when I seen the train I was about to come back into high gear, when I saw the train and I was running–it might have been 18 miles because I was running and possibly I could go back into high gear when I saw the train.” He indicated on a diagram his exact position when he saw the train, and was then asked the following questions and gave the following answers:

“Q. And that is the time you were going approximately 18 miles per hour? A. Yes, sir.

“Q. At that particular point did you have any view up or down this track for a distance of 400 feet? A. Not to my right for the box cars had my view shut off, I had not passed the box cars.”

From respondent's testimony it appears he was somewhere between 18 and 25 feet, “probably 20 or 25 feet,” from the northerly track when he first saw the train. He estimated the speed of the train at 15 miles per hour. The train and truck collided; the front of the truck striking the left front corner of the engine. As respondent expressed it, “I swung my truck just a little to the left before we hit, just swayed the front end, turned it just a little, to give it more of a side sweep than a straight hit,” and the truck and train struck “corner for corner.” The front of the truck was demolished, while the damage to the engine extended from the front thereof back to the steam cylinder on the left side. Neither the train nor the truck traveled off the highway after the impact. The engine was derailed and the truck burst into flames. One of respondent's own witnesses testified that the skid marks made by the truck extended 30 feet back from the track. On the second day of the trial respondent was recalled to the stand and gave further testimony indicating that his speed was “about 15 miles an hour when he was 50 feet from the tracks.” This testimony can hardly be said to create a conflict with the material testimony of respondent previously given in which he stated that he had slowed down to about 15 miles an hour and had then picked up a little speed before the collision and was going about 18 miles per hour when he first saw the train. Respondent also testified that, if he was going 15 miles per hour under the conditions prevailing, he “could not probably stop within 30 or 35 feet.”

The general rules applicable to accidents at railroad crossings have been well summarized in the recent case of Koster v. Southern Pacific Company, 207 Cal. 753, 279 P. 788. Respondent cites other authorities dealing with so-called guarded crossing accidents, and contends that under the circumstances before us the issue of contributory negligence resolved itself into a question of fact for the jury. With this contention we cannot agree. Respondent knew that he was approaching a railroad crossing and that his view of approaching trains was obstructed by the box cars on the southerly track. He blindly relied upon the alleged absence of the flagman, taking it for granted that the “coast was clear.” Without taking any further precautions of any kind, he increased his speed to a point in excess of that permitted by law (California Vehicle Act, § 113 [St. 1923, p. 553, § 113, as amended by St. 1931, p. 2120]), and by reason of said conduct, he was unable to avoid the accident after coming to a point where he could see the on-coming train. In other words, upon failing to see a flagman, respondent drove ahead without exercising any care whatever for his own safety. Under these circumstances we believe that a reversal is required under the authority of Koch v. Southern California Railway Company, 148 Cal. 677, 84 P. 176, 4 L. R. A. (N. S.) 521, 113 Am. St. Rep. 332, 7 Ann. Cas. 795. See, also, Southern Pacific Company v. Day (C. C. A.) 38 F.(2d) 958. The Koch Case involved a crossing guarded by safety gates. which gates failed to operate at the time of the accident. In sustaining a directed verdict in favor of the defendant, the court there said on page 680 of 148 Cal., 84 P. 176, 177: “A railway crossing is, itself, a place of danger and is an effectual warning of danger, a warning which must always be heeded, and the exercise of ordinary care in traveling over such a place is not excused by the negligent omission of the railway company, itself, to exercise reasonable care. (Citing cases.) Nor is it the law that when a railroad company adopts safety gates or any other appliance for the protection of the public, the public is thereby absolved from all duty of taking care of itself. A person is still required to exercise due and ordinary care, and while the quantum of care which will be reasonable may be less where the gates are provided and are relied upon by the traveler, still the gates, themselves, are not an assurance and a warranty such as to justify a traveler in going blindly ahead in total disregard of all ordinary precautions, as did the plaintiff in this instance. (Citing cases.)” Again, on page 681 of 148 Cal., 84 P. 176, 178, in speaking of plaintiff's reliance upon defendant's failure to operate the gates at the time in question, the court said: “He cannot rely wholly upon them, and cannot recover without showing more, as to his own conduct, than that he so relied.”

The cases cited by respondent are all clearly distinguishable. In Marini v. Southern Pacific Company, 201 Cal. 392, 257 P. 74, the court distinguishes the Koch Case upon the ground that the plaintiff stopped to shift gears and was proceeding cautiously over the tracks when the accident occurred. Again, in Gregg v. Western Pacific Railway Company, 193 Cal. 212, 223 P. 553, the Koch Case was distinguished upon several grounds, among which were that plaintiff had slowed his speed to 5 or 6 miles per hour and was looking and listening as he approached the crossing immediately behind an electric car, which electric car crossed after the conductor had made an investigation for approaching trains. In both Ogburn v. Atchison, etc., Ry. Co., 110 Cal. 587, 294 P. 491, and Cain v. Davis, 55 Cal. App. 565, 203 P. 807, the plaintiff actually stopped in close proximity to the tracks before proceeding across. In Robbins v. Southern Pacific Company, 102 Cal. App. 744, 283 P. 850, the deceased approached the tracks at from 4 to 6 miles per hour, “so slowly indeed that the watchman testified that he thought the truck had stopped.” In other words, none of these authorities hold that the adoption of safety devices renders the railroad company absolutely liable for any injury which may occur to travelers on the highway by reason of the failure of such safety devices to function nor that a traveler may blindly rely upon such devices and run upon the tracks without exercising any care whatever for his own safety. In each of said cases, there was evidence to show the driver was exercising some care and was not relying wholly upon the safety devices of the railroad company. A reading of these cases cited by respondent shows that they are entirely in harmony with the authorities above cited, and, while the application of the rules governing the conduct at railroad crossings may present difficulties under certain sets of facts, we find no such difficulty in applying these rules to the facts of the present case.

In justice to the trial judge, it may be stated that he expressed some doubt upon the question here discussed when ruling upon appellants' motions in the trial court, and that he made an order purporting to grant a new trial to appellants, but failed to make said order within the time prescribed by law. In our opinion, appellants' motion for a directed verdict and appellants' motion for judgment notwithstanding the verdict should have been granted.

The judgment is reversed, with directions to the trial court to enter judgment in favor of the defendants.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.