HUSSMAN v. SOUTHERN PAC CO (1937)

This is an appeal from a judgment in favor of plaintiff after a trial before a jury.

Viewing the evidence most favorable to plaintiff (Ah Gett v. Carr, 3 Cal. App. 47, 48, 84 P. 458), the facts in the instant case are:

December 29, 1935, Ralph B. Hussman, who was the husband of Alice D. Hussman and father of Ralph B. Hussman, Jr., plaintiffs herein, while driving his automobile at a speed of between 25 and 30 miles an hour in a southerly direction on Alameda street, collided with the rear end of a freight train of defendant's, standing on Alameda street where it intersects Eighth street in the city of Los Angeles. He died as a result of injuries received in the accident. At the time of the accident and shortly prior thereto it was raining. There were no lights on the rear end of the train, but there was a large street are light suspended near where the accident occurred.

Defendant relies for reversal of the judgment on the following propositions:

First. The trial court committed prejudicial error in instructing the jury as follows:

I. “Under the law of this state, the decedent, Ralph B. Hussman, is presumed to have used reasonable care for his own concern and safety on the occasion in question. This presumption is in itself evidence in the plaintiffs' behalf and shall prevail and control your deliberations until, and unless, it is controverted or overcome by satisfactory evidence. In this connection, I further charge you that you are at liberty to adopt this presumption in preference to the declaration of any number of witnesses who do not produce conviction in your minds.”

II. “You are instructed that the only duty of the deceased at the time and place of the accident in this case to use reasonable care in relation to the speed at which he was traveling, was that he should not drive at a speed greater than was reasonable or prudent, having due regard for the traffic on and the surface and width of the highway, and in no event at a speed which endangered the safety of persons or property; and before you can find the deceased guilty of any negligence whatsoever by reason of his speed, you would have to find that he violated the above duty.”

III. “You are instructed that under the law of this state, even though an express maximum for the speed of motor vehicles is prescribed, a rate of speed in excess of such limit does not of itself constitute negligence, but all the circumstances of a particular occasion or event must be taken into consideration in determining whether a given speed is or is not consistent with the exercise of ordinary care.”

IV. “You are instructed that it is provided by section 525 of chapter 7, division IX of the Vehicle Code of California [St. 1935, p. 181], as follows:

“‘525. Drive on Right Side of Roadway. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the righthand curb or edge of, such roadway, except as follows:

“‘(a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.

“‘(b) When placing a vehicle in a lawful position for, and when such vehicle is lawfully making, a left turn.

“‘(c) When the right half of a roadway is closed to traffic while under construction or repair.

“‘(d) Upon a roadway designated and signposted for one–way traffic or upon a roadway divided into three or more clearly marked lanes for traffic.’

“(If you find that on the occasion in question, the deceased violated this section of the Vehicle Code, such violation, if any, would constitute negligence as a matter of law on the part of said deceased at time in question.)”

V. “You are instructed that Adameda street at the time and place of the accident was a boulevard and through highway and that the purpose of the Legislature in creating such a highway was to facilitate traffic upon it.”

VI. “You are instructed if you find from the evidence in this case or if you are instructed by me that the defendant Southern Pacific Company at the time of this accident had a franchise to operate on Alameda street at the place of the accident in this case, or had a right of way at said place, nevertheless, you are instructed that such franchise or right of way either expressly or by implication carries with it the duty to use reasonable precautions required by the conditions of public travel and required to insure reasonable public safety in the use of Alameda street at the place of the accident in this case.”

VII. “You are instructed that one who is not negligent in the exercise of ordinary care in the operation of an automobile is entitled to rely upon the presumption that others will exercise ordinary care and it is not negligence to fail to anticipate danger which can come only from a violation of law or duty upon the part of another.”

VIII. “You are instructed that if you find that at the time of the accident the deceased was lawfully operating his automobile and exercising ordinary care in the operation thereof then the deceased had the right to assume that the defendants would so operate their train so as to permit deceased to operate his automobile without endangering his life, limb or property.”

IX. “You are instructed that at the time of the accident in this case there existed a certain ordinance of the city of Los Angeles and said ordinance was in full force and effect and provided substantially as follows, to–wit:

“Section 1. It shall be unlawful for any person, firm or corporation to run, propel or operate, or to cause or permit to be run, propelled or operated, any railroad car or train of railroad cars upon, along, or across any public street, or other public place, or across any railroad track, interurban railroad track or street railway track, during the period from one hour after sunset to one hour before sunrise, unless there is attached to such car or train, on the end thereof toward the direction in which such car or train is proceeding, a light of the kind and type hereinafter described, showing a bright while light visible in the direction in which such car or train is proceeding. Such light shall have a reflector and shall be equal in power to the kind usually and customarily used by the car inspectors of steam railroads operating in the city of Los Angeles.

“Provided, however, that the provisions of this ordinance shall not apply to any such car or train if a competent flagman proceeds such car or train carrying a bright while light visible in the direction in which such car or train is proceeding; and provided further, that the provisions of this ordinance shall not apply to any such car or train when the same is crossing any public street or other public place, or when the same is crossing any railroad track, interurban railroad track or street railway track, if such street, place or track is, at the time of such crossing, protected by an interlocking device or apparatus.

“If you find that on the occasion in question the defendants violated this ordinance, such violation would constitute negligence as a matter of law on the part of said defendants.”

Second. The trial court committed prejudicial error in refusing to instruct the jury thus:

“You are instructed that negligence is always a question of time, place and circumstance, and in determining whether or not the defendants were guilty of negligence in the operation of their train, or the deceased negligent in the operation of his automobile, you should take into consideration the fact, if you should find it to be a fact, that the street was lighted; the fact, if you should find it to be a fact, that the tracks of the defendant were plainly visible; the fact, if you should find it to be a fact, that fusees were on the rear end of said train; the fact, if you should find it to be a fact, that trainmen were there with lighted lanterns; the fact, if you should find it to be a fact, that the train itself would be visible if the automobile lights on the automobile of the deceased were properly equipped, or by the street lights; the fact, if you should find it to be a fact, that the deceased knew of the existence of the track, and that the trainmen in charge of defendant's train had the right to assume that the deceased would inform himself fully as to whether or not he could drive safely along or upon said track, together with all of the other facts and circumstances in connection therewith; and if after a full consideration of the testimony you should determine that the deceased was guilty of any negligence which directly or proximately contributed to the happening of the accident in any degree, however slight, your verdict will be for the defendants, notwithstanding you may believe that the defendants were guilty of negligence at the time and place of the accident.”

Third. There was no substantial evidence to sustain the implied finding that defendants were negligent.

The instruction set forth in paragraph I of defendant's first proposition, it is contended, was erroneous for two reasons: (1) That, in view of the fact that plaintiffs introduced testimony regarding the manner in which the accident occurred, it was improper to submit as evidence to the jury the presumption that decedent used reasonable care for his own concern; and (2) that the instruction imposed an erroneous burden of proof upon defendants, in that it required them to overcome such presumption by evidence which “produced convictions” in the minds of the jury.

The first objection to this instruction is not valid, for the rule is settled that the presumption of care becomes part of the evidence of a case and remains such until it is overcome and dispelled by evidence offered by the party relying thereon, which is wholly irreconcilable with such presumption. Smellie v. Southern Pacific Co., 212 Cal. 540, 555, 299 P. 529; Lahey v. Southern Pac. Co. (Cal.App.) 61 P.(2d) 461; Lam Ong v. Pacific Motor Trucking Co. (Cal.App.) 60 P.(2d) 480. In the instant case there were no eye witnesses to the accident and all testimony introduced by the plaintiffs was entirely consistent with the presumption that decedent used due care for his own safety. At best the evidence of plaintiff merely showed facts existing a short time prior to the collision between decedent's car and the rear of defendant's freight train.

The second objection is likewise untenable, this precise point having been answered adversely to defendant's contention by our Supreme Court in Smellie v. Southern Pacific Co., supra, 212 Cal. 540, at page 551, 299 P. 529.

The instructions set forth in paragraphs II, III, IV, and V of defendant's first proposition must be read in conjunction with the other instructions given to the jury, and, when so considered, they fully and fairly instructed the jury as to the law on the subject purported to be covered by them.

The word “insured” as used in the instruction set forth in paragraph VI of plaintiff's first proposition, when read in connection with the entire instruction is not susceptible of the interpretation that defendant Southern Pacific Company, endeavors to put thereon, to wit, that it imposed upon it the duty to insure the public against its negligence in the use of a public thoroughfare. The jury must have understood the instruction as simply meaning that one enjoying a franchise to use a public highway is required to take such precautions as are necessary to insure reasonable safety to the public.

The instruction set forth in paragraphs VII and VIII of plaintiff's first proposition are accurate statements of the principles of law embodied therein. Robinson v. Western P. R. R. Co., 48 Cal. 409, 421; Crabbe v. Rhoades, 101 Cal.App. 503, 517, 282 P. 10.

The objections to the instruction set forth in paragraph IX of plaintiff's first proposition will not be considered by this court, since the instruction was merely repetition of an ordinance which had been received in evidence without objection. It was, therefore, properly before the jury, and defendant may not for the first time on appeal urge an objection thereto.

The instruction set forth in plaintiff's second proposition was properly refused for the reason that it was argumentative. The rule is settled that it is not error for the trial court to refuse an instruction argumentative in form. In re Estate of Clark, 180 Cal. 395, 398, 181 P. 639.

Turning to defendant's final proposition, an examination of the record discloses there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of fact upon which the verdict of the jury was necessarily predicated. Thatch v. Livingston, 13 Cal.App.(2d) 202, 56 P.(2d) 549; Koeberle v. Hotchkiss, 8 Cal.App.(2d) 634, 48 P.(2d) 104; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399.

The judgment is affirmed.

McCOMB, Justice.

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