Opinion
7-3-1951
CONNER ex ux. v. SOUTHERN PACIFIC CO. et al. Civ. 7818.
Glenn D. Newton, Redding, for appellant. Alfred E. Frazier, Red Bluff, Duard F. Geis, Willows, for respondent.
CONNER ex ux.
v.
SOUTHERN PACIFIC CO. et al.
July 3, 1951.
Rehearing Denied July 28, 1951.
Hearing Granted Aug. 30, 1951. *
Glenn D. Newton, Redding, for appellant.
Alfred E. Frazier, Red Bluff, Duard F. Geis, Willows, for respondent.
PEEK, Justice.
This is an appeal from an order granting plaintiffs' motion for a new trial following a verdict and judgment in favor of defendants in a wrongful death action. Plaintiffs are the parents of the deceased, William F. Conner, who was seventeen and one-half years old at the time of his death.
The record shows that on the morning of the accident Conner and a school companion, Richard Benson, undertook to tow a Hupmobile car belonging to Benson to the latter's home. The motorless Hupmobile, which was being steered by Conner was towed by a Ford Model A pickup truck driven by Benson. As the two cars were crossing the tracks of defendant company the Hupmobile was struck by one of said company's trains which was on an unscheduled run and which consisted of only a locomotive, tender and caboose. As a result of the collision Conner received fatal injuries resulting in his death shortly thereafter. At the time of the impact the two vehicles were traveling at about five miles per hour, and the train was traveling approximately 25 miles per hour. Benson testified that he did not see the train until the rear wheels of the truck were on the tracks and that he then attempted to accelerate the truck as rapidly as possible but was unable to clear the tracks. The crossing was unobstructed and the day was clear. Further evidence was that the locomotive fireman saw the two cars when the train was approximately 250 feet away from the crossing--that he thought the cars would clear and therefore did not warn the engineer until the train was about 50 feet from the crossing. Although there was evidence that no whistle was sounded or bell rung, such testimony was directly contradicted by the engineer and the fireman.
Following the submission of the cause, the jury returned a verdict in favor of defendants. Thereafter plaintiffs' motion for a new trial was granted and this appeal followed. While the record does not disclose the grounds upon which the motion for new trial was granted, counsel, in their briefs, are in accord that the trial judge was of the opinion that the instructions given misled the jurors as to the standard of care required of the deceased.
Defendants' contention appears to be that the order must be reversed since the degree of care is greater in case of the occupant of a towed vehicle than that of a passenger, that therefore the instructions given by the court were correct, and hence the court abused its discretion in granting plaintiffs' motion for a new trial.
Plaintiffs, in their argument in support of the order, do not contend that the instructions were erroneous as a statement of the principles of law in a proper case: that is, as applied to the driver of a motor vehicle having complete control over the operation of the same, but as applied to the facts in this particular case they assert that the instructions were confusing, misleading and improper.
Under such circumstances it would appear unnecessary to quote in their entirety the numerous instructions given by the trial court, which plaintiffs now attack. Suffice it to say that essentially such instructions were that Benson was negligent as a matter of law but that his negligence could not be imputed to the deceased; that a person in charge of a towed vehicle is bound to exercise reasonable care in its operation; then, following general instructions relative to the duty of care placed upon a railroad in the operation of its trains, the court gave several instructions relating to the quantum of care of a driver of a vehicle approaching a railroad crossing, which instructions spelled out the specific precautions to be observed by such driver, including an instruction that a traveler familiar with a particular crossing has a greater responsibility for exercising ordinary care than one who is not familiar with such crossing. It is to be noted that all of the latter instructions were predicated upon the fact that the individual therein referred to had control of the vehicle.
The rule is well established that the trial court is accorded a wide discretion on the disposition of motions for new trial; that an appellate court may interfere only if there has been an abuse thereof, and that a stronger showing is required to justify interference with an order granting a new trial than one in which a new trial has been denied. Ambercrombie v. Thomsen, 59 Cal.App.2d 331, 337, 138 P.2d 701; Gray v. Robinson, 33 Cal.App.2d 177, 185, 91 P.2d 194. It is the further rule that there is no abuse of discretion if the trial judge is justified in believing that the jury might have been misled by an instruction. Roberts v. Salmon, 66 Cal.App.2d 22, 151 P.2d 556.
Applying the rules above enunciated to the facts and circumstances presented herein we conclude that the trial judge was fully justified in believing that the all over effect of such instructions led the jury to believe that the deceased, as operator of the towed vehicle, was subject to the same standard of conduct as a driver of a self-propelled vehicle under the same circumstances.
While it may be the rule that within the limitations of his ability to act, the operator of a towed vehicle has the duty to exercise ordinary care in the steering and controlling of the towed vehicle, Farrar v. Whipple, 65 Cal.App. 123, 223 P. 80 still for most purposes the person sitting behind the wheel of a towed vehicle is not in actual physical control of the vehicle. Fairman v. Mors, 55 Cal.App.2d 216, 220, 130 P.2d 448. The propelling force, both as to speed and direction, is supplied by the towing vehicle, and this is particularly true in a situation such as is presented in the present case where the two vehicles were approaching a railroad crossing. Under such circumstances the operator of the towed vehicle is effectively in the same situation as a guest seated beside the driver of a self-propelled vehicle, except that the guest may possibly be in a petter position to ascertain the danger and give warning.
We find no merit in defendants' contention that the motion for a new trial involved a departure from plaintiffs' original theory of the case, which was that the deceased was not contributorily negligent.
The order granting a new trial is affirmed.
ADAMS, P. J., and VAN DYKE, J., concur. --------------- * Subsequent opinion 241 P.2d 535.