DAGGETT v. ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY (1956)

This action arose from a collision between a passenger train and an automobile driven by Paula Smith Daggett, in which she and her two children were instantly killed. One of the children was about one year old and the other about three years old. The action was brought by the surviving husband to recover for the death of his wife and children, and by the parents of Mrs. Daggett, who sought recovery for her death. The engineer and conductor on the train are joined with the railway company as defendants. A jury returned a verdict in favor of the defendants as to the claim arising out of the death of Mrs. Daggett, and in favor of the husband for the deaths of his two children, awarding him $50,000. A motion for a new trial was denied and a judgment was entered on the verdict. The defendants have appealed from the judgment as entered against them and in favor of the surviving husband. The parents of Mrs. Daggett also appealed from the judgment as against them. It is stated in the brief that the parents have appealed solely as a precautionary measure; that the plaintiffs are satisfied with the present judgment; and that they believe a new trial, in the event one is ordered, should be as to all plaintiffs.

This accident took place where the main line of the Santa Fe crosses Plaza Street in Solano Beach some two miles north of Del Mar, which is a flag stop for southbound passenger trains. Plaza Street is the main east-west street of Solano Beach. Immediately west of the railroad crossing Plaza Street intersects with Highway 101, which parallels the Santa Fe main line through Solano Beach. At the time in question an automatic wigwag signal was located on the northeast corner of this railroad crossing, and a standard crossarm was situated at the southwest corner. When a south-bound train arrived at a point 3023 feet north of Plaza Street an electric circuit caused this wigwag signal to go into operation, with the wigwag moving back and forth and a bell ringing. At the time of the accident, a freight car was standing on a spur track east of the main line and about 100 feet north of Plaza Street. There was also a lumber company building on the north side of Plaza Street some 75 feet to the east of the railroad track.

This accident occurred at 11:18 a. m. on June 25, 1954. Mrs. Daggett, who was traveling west on Plaza Street in a Chevrolet Convertible, drove directly in front of a south-bound train. This was a regular passenger train, operated with a diesel engine, which was traveling between 85 and 90 miles an hour. Mrs. Daggett's automobile was traveling at from 10 to 15 miles an hour. It appears from the testimony of three outside witnesses, and without conflict, that the automatic wigwag signal was operating and its bell ringing prior to and at the time of the collision. The engineer and fireman testified that the automoatic bell on the locomotive was ringing and that the train air horn was blown from a point at least 1,000 feet north of the crossing. The sounding of this horn prior to the accident was also testified to by three outside witnesses. The train was traveling on the company's private right of way and the speed limit for the fourth district of the Los Angeles division of the railway company, which included this crossing, was 90 miles per hour. The engineer testified that he approached this crossing at a speed of between 85 and 90 miles per hour, and the speed tape sealed in the locomotive showed the speed between 85 and 86 miles per hour at the time the emergency brake was applied. The engineer testified that he applied the emergency brake some 100 feet prior to the impact in response to the fireman's warning of the approaching automobile. Over the objection of the appellants the jury was allowed to view the scene of the accident, at that time, 15 months after the accident, the automatic wigwag at the northeast corner of the crossing and the crossarm at the southwest corner of the crossing had been replaced with flashing light signals.

The main contention on this appeal is that it was prejudicial error to allow counsel for the plaintiffs, over the objections of the defendants, to introduce evidence that at some time subsequent to the accident the maximum allowable speed at this crossing had been reduced from 90 miles an hour to 50 miles an hour, and evidence that at some time after the accident the type of warning signals installed at this crossing had been changed. The court overruled objections and admitted evidence of these changes, but we are not informed as to when the changes were made, whether shortly after the accident or a year or more later. The defendants argue that this evidence was brought out by the plaintiffs for the purpose of showing a consciousness or implied admission on the part of the defendants of their previous negligence which caused the injury; and that the error was emphasized in repeatedly referring to these matters throughout the taking of testimony, and in arguing to the jury.

It has long been held in this state, as in most states, that such evidence is not ordinarily admissible. In the early case of Sappenfield v. Main St. & A. P. R. Co., 91 Cal. 48, 27 P. 590, 593, the court said:

‘It would be unjust to hold that, because the employer seeks, by all the aid he gets from the light of experience to make the implement free from danger, he is therefore to be charged with negligence in the use of all prior appliances, even though they were adopted with the best light then under his control. * * * He may have exercised all the care which the law requires, and yet in the light of a new experience, after an unexpected accident has occurred, he may adopt additional safeguards. To hold that the adoption of such new appliances, which experience has demonstrated are more efficient than those previously in use, or which invention has developed from observing the defects in those originally adopted, shall be an admission that he was negligent prior thereto, would prevent the very conduct in employers which they should be urged to follow.’

In Helling v. Schindler, 145 Cal. 303, 78 P. 710, 713, it is said: ‘[I]t is now well settled in this state, in accord with the rule prevailing generally elsewhere, that evidence of precautions take and repairs made after the happening of the accident is not admissible to show a negligent condition at the time of the accident.’ These views have been approved in many cases and are based on the sound theory that the fact that a party observes an injury resulting from an accident, and then acts with a view of preventing the possibility of a similar accident again occurring, should operate to commend rather than to condemn the one so acting.

The respondent husband does not question this general rule but argues, under the authority of other cases, that evidence of changes or precautions taken after an accident are admissible for the purpose of impeachment. It is argued that the motorman on this train testified not only that 90 miles per hour was a safe speed through this intersection, but also testified that the speed limit at this intersection, both at the time of the accident and at the time of the trial, was 90 miles per hour, and that it was proper to impeach his testimony by showing that the speed limit at this crossing at the time of the trial was 50 miles per hour. It is also argued that the signal engineer for the defendant company testified that the wigwag signal at this crossing at the time of the accident was the safest type of signal being used on the Sante Fe system at that time, and that it was proper to impeach him on cross-examination by showing that this wigwag signal had been replaced by flashing light signals, and that wigwag signals were being replaced by flashing light signals throughout the entire Sante Fe system.

The exception to the general rule relied on by the respondent, in allowing the admission of evidence of such changes after the accident by way of impeachment of evidence theretofore introduced by the defendant, has been upheld in such cases as Gorman v. County of Sacramento, 92 Cal.App. 656, 268 P. 1083; Uttley v. City of Santa Ana, 136 Cal.App. 23, 28 P.2d 377; Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 55 P.2d 850, and Hatfield v. Levy Brothers, 18 Cal.2d 798, 117 P.2d 841. In all such cases, however, such evidence has been allowed only by way of impeachment of evidence produced by the other party and not as original evidence on the part of the plaintiff.

In the instant case, the first witness called by the plaintiffs was the engineer or motorman on this train, who was called and examined under Section 2055 of the Code of Civil Procedure. After bringing out that the speed of this train was from 85 to 90 miles an hour immediately prior to the accident and that the railway company had a 90-mile restriction in the fourth district, which extended from Fullerton to San Diego and included Solano Beach, plaintiffs' counsel inquired as to the speed in the area between Fullerton and Los Angeles. An objection was overruled, and the witness said that the speed restriction on all districts in the Los Angeles division of the Santa Fe is 90 miles an hour except in the third district, from Fullerton to Los Angeles. Counsel for plaintiffs then asked ‘Well, Mr. Benton and restriction now is 50 miles an hour, isn't it?’ An objection was made and the court said he did not know what district was referred to. Counsel for plaintiff said the restriction in the fourth district was referred to, that the witness had said the restriction in the fourth district now is 90 miles an hour, and that they were prepared to show ‘that the restriction in this district at this crossing now, rather than being 90 miles an hour, is 50 miles an hour’. After some argument between court and counsel, counsel for plaintiffs asked the witness whether he had said that ‘the speeds in these areas then and now are 90 miles an hour.’ The question was not answered and in a discussion between court and counsel the court said that question was vague and indefinite, and that he did not know whether counsel meant the speed at the intersection here in question or whether he meant the speed in the entire area between Los Angeles and San Diego. Counsel for plaintiffs then asked the witness ‘Is it your testimony that the speed area at this Plaza Street now is 90 miles an hour?’ An objection was overruled and the witness replied that the speed, now at the Plaza Street crossing is 50 miles an hour. Not only was this evidence received by way of cross-examination before any evidence was put on by the defendants, but the record clearly shows that the witness had been discussing the general speed limit in the areas between Los Angeles and San Diego, that the first time he was asked concerning the speed limit at the crossing here in question, as distinguished from the speed in the fourth district as a whole, was at the close of the testimony above referred to, and that he had not theretofore given any testimony which was fairly subject to being impeached in the respect here in question.

The second witness called by the plaintiffs was William Price, the signal engineer for the railway company, who was also called under Section 2055. He was asked his opinion as to whether the automatic wigwag in place at the crossing at the time of the accident was the safest possible signal. He replied that in his opinion it was. Counsel for the plaintiffs then asked ‘Well, Mr. Price, you did change that signal after the accident, didn't you?’ An objection was overruled and the witness replied that they were requested to change it by the Public Utilities Commission. Counsel for plaintiffs then asked ‘What type of signal is there there now?’, and the witness replied: ‘Flashing light signals.’ The witness was then asked whether, in his opinion, the new signal was a more safe type of signal than the one in use at the time of the accident. He replied, ‘I do not think so’. He was then asked why he did not think so, and gave his reasons. After then asking the witness many questions in an effort to show that the new signal was a better one, this testimony taking up 10 pages of the transcript, counsel asked: ‘By the way, aren't you changing this type along the system.’ The witness replied, ‘Well, I would say we are gradually going to the flashing light signal.’ In response to further questions the witness again expressed the opinion that ‘the wigwag is just as safe or safer than the flashing light signal,’ but admitted that ‘it would be safer with one on each side than with just one over here.’

The record rather clearly discloses that the evidence as to the change in speed limit and change of signals was brought out by the plaintiffs before any evidence had been brought out by the defendants, and that the evidence in this connection, admitted over the objection of the defendants, was in no proper sense received by way of impeachment of previous testimony produced by the defendants. In our opinion, it was not admissible under the recognized exceptions to the general rule, That this evidence was prejudicial cannot well be doubted in view of the record as a whole. These change after the accident were repeatedly referred to throughout the trial and were referred to at great length in the argument of plaintiffs' counsel to the jury. Counsel for the plaintiffs, in his argument, told the jury to remember the man that testified ‘that he was going 90 miles an hour then and was going 90 miles an hour now, and I had to make him’ admit ‘on impeachment’ that they were now going 50 miles an hour. In his closing argument he argued that ‘the highway signal and the railroad signal’ were so close together as to be confusing, and after referring to the cnanges made he asked the jury why they reduced the speed and why they made the change of the signal if it would not have made any difference; told the jury that the family would still have been alive ‘if that signal had been a proper signal, not a confusing signal, and the train at that time ran as the train does today, at 50 miles an hour instead of the 90 miles an hour’; and then said: ‘Do you think, ladies and gentlemen, that that was a futile act? Not in anywise connected with the safety of that crossing or with this case, that they changed the signal that confused them, and that they changed the speed and cut it in two, from 90 miles an our to 50 miles an hour? How much more do you need in a lawsuit like this to prove a case to a preponderance, beyond a reasonable doubt, and to a moral certainty?’

The reliance and emphasis thus placed on the changes subsequently made were further emphasized by one instruction given by the court, which reads:

‘It is for the jury to determine from all the facts and circumstances and conditions existing at the railroad crossing involved whether such railroad company was negligent in failing to provide additional crossing protection, such as a human gateman, red flashing lights or gates at such crossing.’

In this connection the respondent husband further contends that the defendants waived the right to object to the admission of the evidence as to changes subsequent to the accident because they did not request the trial court to instruct the jury that such evidence was admissible solely for the purposes of impeachment. Not only were these errors of such a nature that their effect could not reasonably be expected to have been removed by such an instruction, but there was no impeachment in a proper sense upon which such an instruction could have been based. Such an instruction would have been meaningless to the jury under the circumstances here appearing, especially in view of the way the evidence was brought in and used by the plaintiffs. In his closing argument plaintiffs' counsel told the jury in speaking of these changes, ‘* * * if it had been the way it is now, certainly there would have been no accident at all, because certainly they wouldn't have made those changes academically or idly, to put in these other signals or to reduce that speed there, and the track, as it was said, that a train can't dodge. Certainly that train then going through a town like that should give more warning, shouldn't it, at least go slower, at least they thought it should go slower in their wisdom when they reduced the speed to 50 miles an hour.’

We find nothing in the fact that the jury was allowed over objection to view the scene of the accident and watch a train go by under the changed conditions, or in the photographs of the intersection taken after the new signals were installed, some of which were admitted without objection, which would excuse or justify the other extended admission and use of evidence of such changed conditions under the circumstances shown.

As to the appeal by the parents of Mrs. Daggett no error is pointed out with respect to the jury's finding that no recovery should be had because of Mrs. Daggett's death, and we find none. Contributory negligence on her part very clearly appears and we see no good reason for retrying that issue. With respect to the other issue, relating to the death of the two children, the evidence erroneously admitted could only have had a prejudicial effect upon the issues was to negligence on the part of the defendant, and as to whether any such possible negligence was a proximate cause of the accident. In view of the undisputed evidence that Mrs. Daggett drove onto this crossing, with which she was familiar, in front of an approaching train, with the engine bell and whistle sounding, and with a wigwag signal operating and its bell ringing, these were very important issues on which the defendants were entitled to a fair trial, under evidence limited to the conditions existing at the time.

The judgment insofar as it denied relief on account of the death of Mrs. Daggett is affirmed. Insofar as it awarded the plaintiff husband damages for the death of the two children that judgment is reversed.

BARNARD, Presiding Justice.

GRIFFIN, J., concurs.