HILDEBRAND v. Los Angeles Junction Railway Company, a corporation, Respondent.* (1959)

This is an appeal from a judgment entered in favor of the defendant, Los Angeles Junction Railway Company, in an action arising out of a collision between the plaintiff and one of the defendants' engines.

This appeal follows the third trial of the action. The first trial ended with a judgment of non-suit in favor of the Los Angeles Junction Railway Company, hereinafter referred to as the defendant, which was reversed in 44 Cal.2d 196, 281 P.2d 249, the second trial resulted in a verdict for the plaintiff in the sum of over $23,000, which verdict was set aside and a new trial granted to the defendant.

There was in the trial with which we are concerned testimony to the following effect: On August 18, 1949, at about 3:30 a. m. the plaintiff was riding and operating a motorcycle in a northerly direction on Eastern Avenue in Los Angeles. Eastern Avenue is a four-lane highway 70 feet in width, marked by double center lines with each side divided by a single line. The night was dark and clear and the pavement was dry. No other vehicles were on the road going in the same direction as the plaintiff. The defendant operated a diesel electric switch engine weighing about 250,000 pounds which at the time of the accident was pulling several freight cars in an easterly direction on tracks which crossed Eastern Avenue at what seems from the exhibits to be at about right angles to the street. The engine was travelling at a speed of not over five miles per hour. The motorcycle bearing the plaintiff collided with the side of the railroad engine and plaintiff was dadly hurt. There was a dispute as to which crossing it was where the accident occurred. Substantially all of the witnesses, including a policeman and an ambulance driver as well as the train crew, testified that the accident took place at the crossing about 1,100 feet northerly from the intersection of Randolph Street and Eastern Avenue at the crossing sometimes spoken of as the Chrysler crossing. The plaintiff claimed the accident occurred at a different crossing which was about 100 to 150 feet north of Randolph Street. The plaintiff approached from the south going northerly at a speed of about 35 miles per hour. There is a rise in the street at or about Randolph Street and as the plaintiff came off the rise there loomed a large black object in front of him. The object was moving from west to east and the object, which apparently was the engine, covered the traffic lane in which plaintiff was then riding, namely the lane closest to the double centered line.

The plaintiff said he applied his brakes as fast as he could and slid into the side of the engine. The crossing was marked by an R. R. crossing sign on the surface of the street, by an upright R. R. cross-arm sign and by lighted street lights. The plaintiff said he saw no lights on the side of the engine nor did he hear any bell, air horn or whistle, nor did he see anyone in the street with a lantern. There was no flashing device nor automatic wig-wag in operation at the point where the accident occurred. The plaintiff had previously travelled the street and knew of the crossing.

The railroad engine had been pulling several cars and it stopped about 25 feet west of Eastern Avenue for a switching operation. Mr. Little was the engineer and he was seated on the left or northern side of the engine. Mr. Everly was the conductor and Mr. Adams was the flagman-switchman. Mr. Plumley was the fireman and was seated in the cab on the right or south side of the engine about 9 feet above the ground level. As the train started forward going easterly Plumley looked to the south and saw a headlight coming over the rise at Randolph Street and watched the light approach until the time of the impact. The engineer was seated about three feet away from Plumley and Plumley did not tell the engineer of the approaching vehicle, stating, ‘I don't have to tell Mr. Little anything. He has eyes. I didn't tell him anything.’ As the engine proceeded easterly the motorcycle was about 300 to 400 feet away when the engine reached the western side of the street. Adams, while in the street, gave a signal to the engineer to come across the crossing. Adams was out about 15 or 20 feet in the street north of the tracks on which the train was travelling and stopped onto the engine when it reached him and continued to ride thereon across Eastern Avenue. When Adams got onto the engine the motorcycle was about 150 to 200 feet away. The motorcycle approached in substantially a straight line with no wobbling or turning. Adams said nothing to the engineer about the approaching motorcycle, although he apparently could see that if the motorcycle continued in the same path it would collide with the train. The motorcycle and the plaintiff did collide with the side of the engine. Much more has been set forth in the briefs about the facts, but we deem what has been set forth herein to be sufficient under the circumstances.

The court instructed the jury on the doctrine of unavoidable accident as follows:

‘In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence.

‘Even if such an accident could have been avoided by the use of greater foresight, caution or skill than was required in the circumstances in the exercise of ordinary care, still no one may be held liable for injuries resulting from it.

‘Whether or not the accident in question in this case was unavoidable is, of course, a question of fact for you to determine; and in giving the foregoing instruction I do not imply any opinion or suggestion as to what your finding should be.’

Appellant contends that error was committed by the trial court in giving the instruction on the doctrine of unavoidable accident; further that the court committed error in failing to instruct the jury on the doctrine of last clear chance, in permitting a police officer to testify with reference to a conversation that the officer had with the fireman at or about the time of the accident, in permitting the fireman to be questioned from a statement made by the fireman to a claims agent; further that the defendant's counsel was guilty of prejudicial misconduct and the jury was guilty of wilful misconduct; and that prejudicial error resulted thereby.

The court said in Butigan v. Yellow Cab Co., 49 Cal.2d 652, 660–661, 320 P.2d 500, 505, 65 A.L.R.2d 1, with reference to the instruction on an unavoidable accident:

‘The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.’

What was said in Halleck v. Brown, 164 Cal.App.2d 586, 589, 330 P.2d 852, 854, is appropriate here, namely:

‘Each driver could have seen the other in time to slow down or stop and thus avoid a collision. The accident could not have happened if neither driver had been negligent. It is sheer nonsense to say that both drivers could be found free of negligence. If it was a common practice to drive into intersections blindly, taking a chance that they would be found clear, there would be thousands of collisions at intersections, where now there is but one.

‘It is well settled that the giving of the unavoidable accident instruction is prejudicial where the evidence discloses no condition and no action or conduct apart from the conduct of the parties that could reasonably have been found sufficient to acquit them of negligence. Martz v. Ruiz, 158 Cal.App.2d 590, 322 P.2d 981; Britton v. Gunderson, 160 Cal.App.2d 66, 324 P.2d 938; Brenner v. Beardsley, 159 Cal.App.2d 304, 323 P.2d 841; Emerton v. Acres, 160 Cal.App.2d 742, 325 P.2d 685; Grant v. Mueller, 160 Cal.App.2d 804, 325 P.2d 680. These cases, applying the doctrine declared by the Supreme Court in the Butigan case, are controlling upon the facts of the present case. This will appear clearly from a reading of the cases and a comparison of the facts upon which the several courts held the instruction to be prejudicial. We, therefore, refrain from encumbering our opinion with an extended analysis of the facts of those cases or with quotations from the cogent and forceful reasoning of the courts' opinions.’

In the case before us there is no explanation of the occurrence consistent with the exercise of due care upon the part of both the plaintiff and the defendant. There is no evidence as to how the accident happened other than through the negligence of the respective parties and neither side asserts that the accident would have occurred but for the action of the other. See 65 A.L.R.2d 12 for an extensive note on the matter of the unavoidable accident instruction.

In Amar v. Union Oil Company of California, 166 Cal.App.2d 424, 333 P.2d 449, at page 453, it was said:

‘* * * it is clear that it is error to give the unavoidable accident instruction in a negligence case where plaintiff has the burden of proving that the complained of injury was proximately caused by the defendant's negligence where the ordinary instructions on negligence and proximate cause adequately so inform the jury, for this is the precise holding of our Supreme Court. See Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897.’

We think that the effect of the unavoidable accident instruction in this particular case under the circumstances was to mislead the jury and that the error was prejudicial so as to require a reversal.

It is unnecessary under the circumstances to discuss the other points raised by the appellant.

Judgment reversed, and the cause remanded for a new trial.

FOURT, Justice.

WHITE, P. J., and LILLIE, J., concur. Hearing granted; WHITE, J., not participating.