Opinion
Rehearing Granted Sept. 29, 1930.
Appeal from Superior Court, Fresno County; Charles R. Barnard, Judge.
Action by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company, William H. Bruce, and another, in which the second named defendant filed a cross-complaint. From the judgment, the defendants appeal.
Reversed. COUNSEL
Frank Everts, Everts, Ewing, Wild & Everts, Dan F. Conway, and Conley, Conley & Conley, all of Fresno, for appellants.
George R. Lovejoy and Ray W. Hays, both of Fresno, for respondent.
OPINION
CAMPBELL, Justice pro tem.
This is an action brought by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company and its motorman, W.E. Gash, and also against William H. Bruce, the driver of the automobile in which Genevieve Brennan, deceased, and her minor son were riding at the time of the collision, which occurred at a railroad crossing on September 20, 1928. The case was tried before a jury and resulted in a verdict against all of the defendants for $20,001; also a verdict in favor of the Fresno Traction Company and W.E. Gash as against the cross-complainant on the cross-complaint of William H. Bruce. All of the defendants have appealed.
The Fresno Traction Company operates its electric trolley line on regular schedule between the city of Fresno and the town of Pinedale, which is situated some nine miles north of Fresno, and has been operating such line for a number of years. The line runs approximately north and south between Fresno, and Pinedale and is a single-track line where it crosses Shaw avenue, which is a paved highway and runs approximately east and west. The paved portion of the highway is twenty-four feet in width and crosses the tracks of the Fresno Traction Company at a right angle. This intersection is about five miles from the city of Fresno in a level and sparsely settled territory.
The deceased, Genevieve Brennan, a woman of thirty-five years of age at the time of the accident, was employed by defendant William H. Bruce, a man of thirty-seven years of age, to do general housework on a ranch upon which he was living and was leasing, which is located about eleven miles north of Madera. Some two weeks prior to the accident Bruce had taken Mrs. Brennan and her small boy to visit her mother and on the date of the accident had gone for them and was returning them to his ranch. Bruce drove his automobile in a westerly direction along Shaw avenue. The trolley car involved in the collision approached Shaw avenue from Bruce’s right and was traveling in a southerly direction towards Fresno. For 637 feet along Shaw avenue before reaching the car tracks and on Bruce’s right as he approached the crossing and in the direction from which the electric car was approaching there was nothing to obscure Bruce’s nor Mrs. Brennan’s vision of the electric car; the ground was level; no foliage, house, or other obstructions of any kind were in the open country on their right as they proceeded towards the rails of the Fresno Traction Company. Three hundred and seventy feet from the tracks facing east and in the direction from which Bruce and the deceased approached the tracks was a standard California State Automobile Association railroad warning sign. The property lines extend eighteen feet both north and south of the paved portion of Shaw avenue. Twelve feet seven inches from the rail and facing the direction from which the automobile was approaching and thirteen feet north of the paved portion of the highway stood a standard railroad crossing sign. The automobile in which Bruce, Mrs. Brennan and the child were riding was an open Ford. Mrs. Brennan sat next to Bruce in the front seat, and the boy was sitting at the right of his mother. From defendant Bruce’s testimony it appears that he and Mrs. Brennan were discussing what he had done while she had been away. As they approached the tracks and at a distance of about sixty or eighty feet therefrom they both looked to the right and then he looked to the left. He further testified that he saw nothing; that Mrs. Brennan said nothing until just before the crash, when she said "Lord! There is a car"; that he did not slow the speed of his automobile at any time during his approach to or while he was upon the tracks. As to the motorman giving a warning signal there is some conflict. Both the motorman and Robert Morris Hogan— the only passenger on the electric car at the time of the accident— testified that the motorman sounded a warning gong, the motorman stating: "Somewhere within about sixty feet of the edge of the paved portion of the highway, and I rang my gong *** and he didn’t check his speed any, and they were looking right at me, and I thought he was going on through, or he might have been aiming to stop; I can’t say but he didn’t check his speed. *** I went over and got a little air. Taken just enough air through my air valve to pull the car down so it would give him plenty of time for clearance on through. *** Well, he didn’t check his speed. I got up within— something about ten or twelve feet of the edge of the paved portion of the highway and he was anywhere from about seven to nine feet east of the street car rail and all of a sudden he slammed on his brakes and swayed just a little to the left, and I had taken all the air I had, then at that time, and I realized there was going to be an accident." The passenger Hogan stated that the motorman rang his gong "ten or fifteen feet before we hit the crossing. I couldn’t say just exactly how far." Defendant Bruce testified that he heard no such gong sounded, and Floyd Lawden, a youth of thirteen years of age, who was walking along Shaw avenue and when about one hundred feet west of the car tracks his attention was attracted by the crash of the collision, testified that he did not hear a gong or bell rung. When the motorman first observed the automobile the electric car was traveling at eighteen or nineteen miles an hour, and when it approached the crossing it had been slowed down to seventeen miles per hour. The speed of the automobile, according to defendant Bruce, was from eighteen to twenty-two miles an hour. The automobile was struck about the center of the highway, shoved along and across the same and up to a telephone pole which stood eighteen feet south of the southerly edge of the paved portion of the highway and a few feet west of the electric car tracks. Mrs. Brennan and her son sustained injuries from which they both died the next day.
The facts clearly show the driver of the automobile to be guilty of contributory negligence as a matter of law in driving his automobile upon a railroad track, which is itself a sign of danger, without first looking and listening Giannini v. Southern Pacific Co., 98 Cal.App. 126, 276 P. 618, and cases collated. Shaw avenue is outside the limits of any incorporated city, and there being no ordinance compelling the motorman to stop at the intersection, the action is governed by different rules of law than those which arise within the corporate limits of a municipality, coming under the same rules of law applicable to steam railways. New York Lubricating Oil Co. v. United Railroads, 191 Cal. 96, 215 P. 72; Billig v. Southern Pacific Co., 192 Cal. 357, 362, 219 P. 992, 995. The evidence discloses that the motorman observed the automobile proceeding at an ordinary rate of speed and therefore had a right to rely upon the presumption that the driver would perform his duty and stop at the intersection. And this is especially true where, as here, the driver and the deceased were looking directly at the electric car. The view was clear and unobstructed, and the fact that the defendant Bruce testified that he did not see the car nor hear the warning gong is immaterial, as "the law presumes that a person possessing normal faculties of sight and hearing must have seen and heard that which was within the range of his sight and hearing." Young v. Southern Pacific Co., 189 Cal. 746, 754, 210 P. 259, 262. Furthermore, a person approaching a railroad track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen, and a traveler may not depend upon a custom or even a duty enjoined by law to give appropriate signals of the approach of trains and has no right, because he heard no such signals, not to look and listen. Griffin v. San Pedro, L.A. & S.L.R.R. Co., 170 Cal. 776, 151 P. 282, L.R.A.1916A, 842; Vaca v. Southern Pacific Co., 91 Cal.App. 470, 475, 267 P. 346. The motorman had the right to presume that the driver of the automobile would stop and turn aside until his conduct was such as should reasonably have led him to apprehend the contrary. So long as it appeared that the driver "with reasonable care, could stop his automobile, or turn it to one side or the other, so as to avoid a collision, and there were no obvious indications that he might not do so, the motorman had the right to assume that he would do so and upon that assumption to proceed along the track." Arnold v. San Francisco-Oakland Railway Co., 175 Cal. 1, 164 P. 798, 800. "The operator of such train or car was not bound to check the otherwise rightful speed of his train or car in approaching and passing such crossing until at least he has reason to believe that such person so approaching such crossing is not performing, or is not likely to perform, his duty in the foregoing regard." Billig v. Southern Pacific Co., supra.
In the present case the testimony shows that the motorman was not aware of any danger until his car was approximately ten or twelve feet from Shaw avenue. Up to that time he believed— as under the law he had a right to believe— that the driver of the automobile would obey the law and either stop his automobile or speed up and go by, and this especially in view of the fact that when he first looked, the occupants of the automobile were looking at him. In fact, the testimony of Bruce was that when he was eighty feet back from the track both he and the deceased looked in the direction of the on-coming car, and the testimony further establishes the fact that Bruce could easily have stopped his automobile before reaching the intersection. From a point ten or twelve feet from Shaw avenue, where the motorman first became cognizant that a collision would occur or first realized there was imminent danger, he did everything within his power to stop the car; he gave it all the air he had and did his utmost to prevent the accident.
Respondent urges that whether or not the deceased was guilty of contributory negligence was a question of fact for the jury to determine and cites Parker v. Southern Pacific Co., 204 Cal. 609, 269 P. 622, 624, in which it is said: "It is impossible to lay down a general rule as a test of a passenger’s responsibility under such circumstances. At times it might be highly improper to suggest any course of action on the part of the driver. At other times the circumstances might be such as to charge the passenger with some duty to suggest caution or otherwise endeavor to protect himself. See Parmenter v. McDougall] 172 Cal. 306, 156 P. 460; Stewart v. San Joaquin L. & P. Corp., 44 Cal.App. 202, 186 P. 160. Each case must rest upon its own set of facts, and the determination of those facts, as a general rule, is one for the jury."
The facts here, however, are more nearly analogous to those in Barnett v. Atchison, etc., Ry. Co., 99 Cal.App. 310, 278 P. 443, 445, decided subsequently to the Parker Case, and in which a petition for a transfer to the Supreme Court for rehearing and decision was denied, wherein under analogous circumstances guests riding in an automobile, three of whom were killed and one injured, were held to be guilty of contributory negligence as a matter of law and for that reason denied recovery. In that case the accident happened at a crossing over the main transcontinental line of defendant corporation approaching the city of Antioch. The crossing was through the private property of the Antioch Lumber Yard, which was used as an approach to an old wharf. Five young men, Taylor, Casner, Barnett, Hallmark, and Parks, had crossed over the railroad tracks a short time prior to the accident riding in a touring car which was driven by Hallmark. Parks was seated in the front seat on the driver’s right; Casner, Taylor, and Barnett were seated in the rear seat. Parks alighted at the wharf and secured some minnows which he placed in the tonneau of the automobile and Hallmark thereupon backed the automobile off the wharf over the same course they had just followed. While they were thus approaching the railroad track Hallmark was looking to the left and rear of the automobile while the three men in the back seat had their heads down and were examining the minnows. A train of defendant corporation approached from the right of the backing automobile. It was seen by Parks, who called to his companions to jump. He jumped free from the machine and was uninjured. Hallmark, Casner and Barnett were all killed as a result of the impact, while Taylor suffered serious injury. All five of the occupants of the automobile were familiar with the conditions surrounding the crossing and had passed over it at other times. The court there says: "This evidence unmistakably demands a holding that they were all guilty of contributory negligence as a matter of law. It must be conceded that, if they had stopped when they passed the corner of the shed, a distance of 18 feet from the railroad track, and had looked, they would have seen the approaching train, as from that point they had a clear vision of the track for a distance of approximately one-half a mile." The present case evidences greater negligence on the part of the guest than in the Barnett Case, just quoted from. Here the deceased, like the guests in the Barnett Case, had not only passed over the crossing at other times (five times according to respondent), but the track was plainly visible; she had a clear and uninterrupted view of the approaching car and the testimony of all the witnesses shows she looked towards it when she was a distance of sixty to eighty feet from the crossing, and whether she actually took note of its approach or not, she is charged with having seen it, as it was within the range of her vision (Young v. Southern Pacific Co., supra), and she was also warned of the presence of the railroad track by two railroad crossing signs, one 370 feet from the track and the other 12 feet and 7 inches from the track, both facing in the direction from which defendant Bruce and she approached. It being held in the Barnett Case that the guests riding in the car driven by Hallmark were guilty of contributory negligence as a matter of law in not looking and listening as the car was being backed upon the tracks, a fortiori it must be held that the deceased here was guilty of contributory negligence as a matter of law in not calling the attention of the driver to the approaching car.
There is no merit in respondent’s contention that the defense of contributory negligence is not available to defendant Gash, as contributory negligence is not pleaded by him. While it is generally true that contributory negligence of the plaintiff must be pleaded by defendant in order that he may rely upon it as a defense, it is available if the evidence of the plaintiff affirmatively shows such contributory negligence. 19 Cal.Jur. 681, 698; Robinson v. Western Pacific R.R. Co., 48 Cal. 426; Green v. Southern Pacific Co., 132 Cal. 254, 64 P. 255; Kenny v. Kennedy, 9 Cal.App. 350, 99 P. 384. The depositions of defendants Bruce and Gash were read in evidence by the plaintiff, from which it affirmatively appears that the deceased was guilty of contributory negligence.
As what we have said disposes of the case upon its merits, it becomes unnecessary to discuss the points urged by appellants that the court should not have permitted the jury to find specially the amount each particular heir was entitled to receive from the total damage fund, and that the court erred in refusing to give certain instructions. We might, however, say that we agree with appellants’ contention that the jury should not have been permitted to divide the total amount found between the heirs, fixing the loss of Frank Brennan at $1 and the other four heirs at $5,000 each. Under section 377 of the Code of Civil Procedure it is not intended that the amount recovered shall be divided into integral or proportional parts. Robinson v. Western States Gas Co., 184 Cal. 410, 194 P. 39.
As to the point urged that the court erred in refusing certain instructions, we may say that in our opinion the instructions correctly state the law and should have been given unless the principles they announce are embodied in other instructions given. There is no claim that the instructions refused are covered by others with the exception of defendants’ instruction No. 4, which deals with the prudence and care a guest in an automobile must exercise, and we think the instruction quoted by respondent as given by the court is sufficient on this question.
The judgment is reversed.
We concur: TYLER, P.J.; CASHIN, J.