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FERRAN v. SOUTHERN PAC. CO. et al.a1
An appeal by plaintiff from a judgment entered for defendants, notwithstanding a verdict in plaintiff's favor.
Plaintiff was injured while waiting to board a north-bound train at Lomita Park, a station on the railroad of the Southern Pacific Company, which company will be hereinafter referred to as the defendant. The railroad at this point consists of double tracks. Fronting the station the tracks are approximately eight feet apart. Upon the track nearest the station were operated the south-bound trains, and upon the other track the north-bound trains. Certain passenger trains made regular stops at this station; others stopped only when flagged by passengers. The injury to plaintiff occurred on the morning of June 14, 1931. He was at that time a resident at Lomita Park, and “commuted” to and from San Francisco, where he was employed. A train bound for San Francisco and which would stop only upon signal, was due at Lomita Park station at 8:22 a. m. Plaintiff held a regular commutation ticket and was awaiting this train. The station platform was macadamized, as was the space between the tracks. According to the plaintiff, when he arrived at the station platform, he looked in both directions for approaching trains; he saw no train approaching from the north, in which direction he had a clear view for about a mile. Looking south, he saw the train he intended to board rounding a curve about half a mile away. He then walked to the macadamized space in front of the station and signaled the approaching train. He again looked to the north, and, seeing no train in that direction, remained between the tracks, facing south. While in this position he was struck by the overhang of the locomotive of a south-bound passenger train which, according to schedule, did not stop at this station. He knew that during the morning hours through trains from the north passed through the station without stopping. The north-bound train on this occasion stopped about 600 feet south of where plaintiff was struck, and the south-bound train was brought to a stop about the same distance south of the station. The engineer of the latter train died before the trial, but defendant John E. Monroe, who was the fireman, saw plaintiff standing between the tracks when about 1,700 feet away and called the engineer's attention to the fact. Monroe testified that he concluded that plaintiff's position was not necessarily dangerous, but the physical facts support a contrary conclusion. The train was traveling at the rate of 45 to 50 miles an hour, and its speed was not slackened before the collision. The evidence was conflicting as to whether the whistle sounded: the trainmen testified that this signal was given, but other witnesses heard none. The plaintiff heard the sound of a whistle immediately before he was struck, but believed that it came from the north-bound train.
The weight to be given negative testimony, where it is claimed that signals were not given, is a question for the jury; and such evidence is sufficient to sustain a verdict even though it conflict with other evidence that a warning was actually given. Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 134 P. 709; Keena v. United Railroads, 197 Cal. 148, 239 P. 1061.
It is the rule that, where a passenger is required to cross a railroad company's intervening tracks in order to take his train or to leave it or to change from one train to another, it is not negligence per se not to stop, look, and listen, and he has the right to assume that the company will so regulate the movement of its trains as to enable him to cross in safety. Wilkinson v. United Railroads, 195 Cal. 185, 232 P. 131. Had plaintiff been injured while crossing an intervening track in order to board the train after its arrival at the station, the above rule would of course apply; but here none of the physical conditions made it necessary for him to place himself upon or between the tracks in order to signal the train as a signal from a place of safety on the station platform could have been plainly seen by the trainmen; and it is clear beyond dispute that he placed himself in a position of danger and so remained until he was injured. He also testified that he looked to the north before crossing and after he had taken his position between the tracks, but saw no train in that direction. However, it is manifest from his testimony that he remained at that point for at least a minute after his last look to the north, and that, had he looked again within that time, the approaching south-bound train would have been plainly visible to him. A railroad track upon which trains are constantly running is itself a warning of danger (22 Cal. Jur., Railroads, § 59, p. 306); and it is plain from the facts as related by plaintiff that it was his duty to exercise constant vigilance to discover an approaching train. Here to look was to see. Similar facts have been held to constitute contributory negligence (Holmes v. South Pacific Coast Ry. Co., 97 Cal. 161, 31 P. 834), and we are satisfied that this is the only conclusion which can reasonably be drawn from plaintiff's conduct.
He contends, however, that, regardless of his negligence, the engineer saw his danger, of which he was unaware, and that the failure to stop the train or to so slacken its speed as to enable him to escape, a timely warning being given, was the proximate cause of his injuries. Defendant denies that it was guilty of any negligence; but urges that, if such was the fact, both parties were guilty of concurrent acts of negligence, and that the last clear chance rule has no application.
Such was the doctrine declared in the following cases: Holmes v. South Pacific Ry. Co., supra; Everett v. Los Angeles, etc., Ry. Co., 115 Cal. 119, 43 P. 207, 46 P. 889, 34 L. R. A. 350; Green v. Los Angeles, etc., Ry. Co., 143 Cal. 31, 76 P. 719, 101 Am. St. Rep. 68; Young v. Southern Pacific Co., 189 Cal. 746, 210 P. 259; Riney v. Pacific Electric Ry. Co., 45 Cal. App. 145, 187 P. 50; Giannini v. Southern Pacific Co., 98 Cal. App. 126, 276 P. 618; Smith v. Los Angeles Ry., 105 Cal. App. 657, 288 P. 690, but the contrary was held in the recent case of Girdner v. Union Oil Co., 216 Cal. 197, 13 P.(2d) 915, 918. There the court, referring to the above decisions, said: “The element of continual negligence is present in all last-chance cases. If defendant is not able to avoid injuring plaintiff in the exercise of ordinary care, the plaintiff's original negligence continues to be the proximate cause of his own injury, which bars recovery. If, on the other hand, defendant is able to avoid injuring the negligent plaintiff, and negligently fails to do so, plaintiff's original though continuing negligence only remotely contributes to the injury and is not the proximate cause thereof, and hence the applied doctrine, by its own principles, establishes the right of plaintiff to recover notwithstanding the fact that his original negligence would, by its continuing nature, bar a recovery if the doctrine were not applicable. To hold otherwise would be to dispute its existence.”
As stated, the engineer of the south-bound train saw plaintiff in a position of danger when nearly a third of a mile away and in time to have stopped the train or slackened its speed sufficiently so that by proper signals plaintiff would have become aware of the peril in time to have escaped. Whether the engineer realized, or ought to have realized, that plaintiff was unaware of his danger, and could not be relied upon to make an effort to escape, and then had a clear chance to avoid injuring him, were, we think, properly questions for the jury. Chappel v. San Diego, etc., R. Co., 201 Cal. 560, 258 P. 73; Girdner v. Union Oil Co., supra.
The rule as to a motion for judgment notwithstanding the verdict is the same as with regard to the right to grant a nonsuit; and the result is a determination that there is not evidence sufficient to support a verdict for plaintiff. Card v. Boms, 210 Cal. 200, 291 P. 190; Newson v. Hawley, 205 Cal. 188, 270 P. 364; Hunt v. United Bank, etc., Co., 210 Cal. 108, 291 P. 184. The evidence here was fairly sufficient to sustain a finding that the engineer, notwithstanding plaintiff's negligence, had the last clear chance to avoid the collision and could have done so by the exercise of ordinary care.
But as regards defendant Monroe there was no evidence that he controlled the operation of the locomotive or was in any way negligent, and the judgment in his favor must therefore be affirmed.
The judgment as to defendant Monroe is accordingly affirmed, and as to defendant Southern Pacific Company is reversed, and the cause remanded, with directions to the trial court to enter a judgment against said last-named defendant in accordance with the verdict.
PER CURIAM.
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Docket No: Civ. 8897.
Decided: September 11, 1934
Court: District Court of Appeal, First District, Division 1, California.
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