Opinion
Rehearing Denied Jan. 17, 1929
Hearing Granted by Supreme Court Feb. 14, 1929
Appeals from Superior Court, Orange County; Z.B. West, Judge.
Actions for damages for death by Nellie Baldwin and others, and by Mrs. James T. McGuffin, against the Pacific Electric Railway Company and others. The two cases were tried together, and from the judgments plaintiffs appeal. Reversed. COUNSEL
Bertrand J. Wellman, of Los Angeles, and Norval N. Edwards, of Orange, for appellants.
E.E. Morris and Frank Karr, both of Los Angeles, and S.W. Reinhaus, of Santa Ana, for respondents.
OPINION
PLUMMER, J.
By stipulation, the two cases above named were tried together before the same jury, and are before this court upon a single record. One action is based upon the death of James T. McGuffin, the husband of Mrs. Addie McGuffin, and one action is based upon the death of Elwood E. Baldwin, the husband of Mrs. Nellie Baldwin. The deaths of the respective parties were caused by a collision between an automobile driven by James T. McGuffin (in which Elwood E. Baldwin was riding as a guest), with an electric car owned and operated by the defendant Pacific Electric Railway Company, a corporation.
The record shows that on or about 10:30 p.m. of the 18th day of May, 1924, James T. McGuffin and Elwood E. Baldwin were returning by automobile from the town of Santa Ana, to their homes in the town of Whittier; that they were driving northward along that certain state highway known as and called the "Fullerton State Highway"; that at a certain point on said highway, where its direction is northerly and southerly, it is intercepted by an electric railway track owned by, and upon which electric cars are operated by, the defendant Pacific Electric Railway Company, a corporation, and also by a certain other railroad owned by, and upon which the Los Angeles & Salt Lake Railroad Company, a corporation, operated trains drawn by steam locomotives. The record further shows that these railroads, which run in a westerly and easterly direction, are somewhere between 100 and 200 feet apart, and that the line owned and operated by the defendant Pacific Electric Railway Company lies to the south of the line owned and operated by the Los Angeles & Salt Lake Railroad Company. It appears by the record that the two defendant companies maintained and operated gates across the highway where their lines intercept the same. One gate is located a very few feet south of the line maintained by the Pacific Electric Railway Company, and one gate is maintained a few feet north of the line maintained and operated by the Los Angeles & Salt Lake Railroad Company. These gates are operated by a watchman stationed in a tower some 40 feet easterly from the east boundary line of the Fullerton highway. It appears, also, that somewhere in the neighborhood of 1,000 feet east of the Fullerton highway the two railroad lines intersect each other, and one of the duties of the towerman is to signal to the trains approaching on either railroad relative to the right of way which may belong to the trains being operated upon the respective railroads. The improved portion, or what we may call the concrete slab of the Fullerton highway was, at the time of the collision herein referred to, 18 feet in width. The gate operated by the respective companies, situate south of the Pacific Railway Company’s line, was lowered from the east side of the highway. It appears that one end of the gate operates upon a pivot attached to a post east of said highway. The gate in question was in the shape of the letter "Y," having two boards which extended about halfway across the improved slab, forming a juncture there, and then continuing out over the remaining portion of the highway as one board only. On the night in question it appears that a red lantern had been suspended under the easterly portion of the gate at a point about midway of the east one-half of the concrete slab. The position of the lantern thus suspended would be about the center of the portion of the highway traversed by automobiles being driven northward. On the night mentioned. the automobile driven by McGuffin, and in which Baldwin was riding as a guest, was traveling in a northerly direction. The red lantern suspended under the gate was so constructed that the light was projected therefrom in a southerly direction, having a shield or back which prevented the rays extending in a northerly direction. It also would appear that the lantern was so constructed as not to illuminate or disclose the presence of the gate from which it was suspended.
There is testimony in the record from which the jury could conclude that the night was dark and foggy. There is also testimony in the record from which the jury might conclude that it was a light night and that the moon was shining. Testimony was introduced, which seemed to be uncontroverted, that there was a full moon on the night of the collision. This evidence appears only from the World’s Almanac, which of course does not take into account either the presence or absence of fog. In their course northerly it appears that at some little distance south of the point where the collision occurred, the automobile in which the deceased parties were riding passed certain other cars traveling in the same direction, and upon coming to where the highway is intersected by the Pacific Electric Railway, apparently swerved to the left, at least was at that point driven along the westerly half of the concrete slab through the one-board portion of the gate referred to, and either was stopped or stalled upon the railroad track, or was hit by an electric car propelled by the agents of the Pacific Electric Railway Company, at the instant it came upon the line of the company. The contention of the plaintiffs was, in the court below and here, that the driver of the automobile mistook the red light suspended below the gate, as we have mentioned, for the tail-light of an automobile proceeding northerly, and turned to the left to avoid coming in contact therewith and to effect a passage by such automobile, and at that instant discovered the presence of the one-board portion of the gate, and in an attempt to avoid a collision therewith, slowed down the automobile to such a degree that it either stalled or stopped upon the railroad track and was hit or struck by the car operated by the electric company when it reached the railroad track. There is considerable testimony in the record to the effect that there was a distinct interval of time between the sound produced by breaking through the gate and the noise of the collision of the electric car with the automobile. There is also testimony in the record that it was one continuous crash; that one sound followed the other instantly. The action is primarily based upon the alleged negligent manner in which the red light was suspended beneath the gate; that it was suspended in such a manner as not to disclose the presence of the gate, but in such a manner as to be readily mistaken by an automobile driver for the tail-light of another machine traveling in a northerly direction. The allegation of the complaint in each case is substantially in these words in so far as this question is concerned: "That said defendants carelessly, negligently, and unlawfully failed and neglected to sufficiently light and illuminate said gates whereby they could not be seen or distinguished and because whereof the said automobile in which the said Elwood L. Baldwin was riding ran into and against said gates and was thereby caused to stall on the said railway tracks of the defendant Pacific Electric Railway Company, and the defendants further carelessly, negligently and unlawfully drove, maintained, and operated said electric car whereby the same struck and collided with the said stalled automobile with great force and violence whereby, and because of the negligence of the defendants in failing to light and illuminate said gates as above stated, and negligence in operating the said electric car as above stated, injuries were inflicted upon the said Elwood L. Baldwin from which he then and there died." The gate, when lowered, was about 3 ½ feet above the highway, and had, within a few feet of the farthest end thereof, that is, the end farthest from the base, a leg which dropped down to the pavement and rested upon a coil of springs which, for a few moments when lowered, would cause the gate to oscillate slightly and raise the red light up and down for the period of time that the gate oscillated.
The place where the collision occurred established that the automobile was traveling along the left side or left one-half thereof, which would be the westerly portion of the concrete slab. The record contains testimony to the effect that a crossing whistle was blown by the electric car, and that a bell or gong was sounded in the tower when the gate was lowered. There is also testimony in the record, of several witnesses, that they heard no whistles from the electric car until the blowing of a few short whistles immediately preceding the collision. There is further testimony in the record that the lights of the electric car were seen by occupants of other automobiles following the car driven by the deceased McGuffin. There is no testimony in the record, which we have been able to discover, which indicates that either one of the deceased was familiar with the crossing in question, or had any knowledge of its existence. The rails of the electric road were flush with the pavement, and our attention has not been called to any objects, other than those which we have mentioned, which would indicate the presence of an intersecting railroad. The record also contains evidence, from which the conclusion might properly be drawn, that for the last 150 or 200 feet traversed by the automobile before the collision, it was moving at a speed of about 25 miles per hour, and as it reached the gate suddenly slowed down and moved forward to the railroad tracks upon which it was either stopped or stalled. The distance between the gate and the nearest rail was about 8 feet.
From the foregoing statement it is readily apparent that the jury might have reached either one or the other of two conclusions, to wit: That the lantern hung beneath the gate was a like color with the tail-lights of automobiles, and was placed in such a position that an automobile driver, unfamiliar with the surroundings, might have readily mistaken the light suspended from the gate, for the tail-light of an automobile and swerved to the left in order to avoid the same, and at that instant, perceived the presence of the gate, and immediately did what he could to stop the forward progress of the machine, and in the emergency of so doing, either stopped or stalled his engine, with the automobile resting on the railroad track. Or. the jury might have come to the conclusion that at least the automobile driver was driving along without taking the reasonable and necessary precautions for his own safety and the safety of his guest, which the law requires to be exercised by all automobile drivers to escape the charge of contributory negligence in the event of injury. Under these circumstances, it becomes necessary to consider the alleged errors of the court in giving instructions to the jury.
At the request of the plaintiffs, the court, among others, gave the following instructions to the jury: "While a railroad crossing is a warning of danger, if the conditions are such that it cannot be seen or known to a person exercising reasonable care, it is not a warning, and all that is said in these instructions about a railroad crossing being a warning of danger, only applies to those crossings that a reasonably careful person could see and know were there." This instruction correctly and properly called the attention of the jury to the fact, as we have hereinbefore stated, that there was nothing in the testimony indicating the presence of a railroad other than what we have herein set forth and considered. The testimony does not show that there was any railroad embankment on either side of the highway, nor does it show that there was any visible portion of the railroad on either side of the highway, nor does it shows that there was any visible portion of the railroad on either side of the highway, and if the testimony is true that the night was dark and somewhat foggy, it is evident that the lights of the automobile in which the deceased parties were traveling would not disclose any objects save those which were immediately upon or across the highway.
Following the instructions given at the request of the plaintiffs, the court, at the request of the defendant, gave three instructions alleged by the appellants to constitute reversible error. These instructions are, in the order in which we will consider them, numbered, respectively, XXIX, XVI, and X.
Instruction No. XXIX is in the following words: "You are instructed that there is no law requiring the railroad company or either of the defendants to place or maintain any wigwag signal at this crossing nor to maintain any artificial lights at said crossing, and therefore it was not negligence of itself for the railway company to not have a wigwag installed or not to have said crossing lighted with artificial lights."
Instruction No. XVI reads as follows: "It was the duty of Mr. McGuffin in approaching this crossing to approach the same with his automobile under such control that he could stop the same in case the crossing appeared dangerous, and if he failed to so approach the crossing, then he was guilty of negligence, and if such negligence contributed proximately in any decree to the happening of the accident, then Mrs. McGuffin cannot recover, and if such negligence was alone the proximate cause of the accident, neither of the plaintiffs in these cases can recover and your verdict should be for the defendants in both cases."
Instruction No. X is as follows: "In approaching this crossing if Mr. McGuffin’s view of the approaching car was obstructed by any objects whatever so that he could not see the car approaching, then ordinary care for his safety and that of the safety of Mr. Baldwin, required him to stop and then to look and listen for approaching cars, and to stop at some place before reaching the tracks, in a place of safety where looking would be effective and where he would have an unobstructed view of the track, and then and there see and hear that which could have been seen or heard approaching upon the tracks with the use of ordinary care, and if he failed in this respect he was negligent, and if such negligence contributed proximately in any degree, no matter how slightly, to the happening of the accident, Mrs. McGuffin cannot recover, and if such negligence was alone the proximate cause of the accident neither of the plaintiffs can recover and your verdicts should be for the defendants in both cases."
As an abstract proposition of law, instruction No. XXIX is a correct statement, but as applied to the circumstances disclosed by this case, it was not only erroneous but also misleading. The law is well settled that, unless there is some statute or ordinance requiring the installation of a wigwag or other signal, or the illumination by artificial lights of a railroad crossing, a railroad company is under no necessity of installing signals or lights; but it is also the law that when a railroad company voluntarily assumes the task of erecting and maintaining signal devices, whether they consist of wigwags, lights, or gates, such instrumentalities must be so operated as to constitute a warning of danger, and not a contrivance which may, from its manner of operation, become a menace by reason of its being readily misunderstood. Thus, in the present case, while a gate across a highway is not in and of itself a nuisance, it may be so operated as to become such. Every person using a public highway has a right to assume that that highway will not be obstructed by any device that will lead to, or increase, his peril in the use of such highway. The testimony in this case leads unavoidably to the conclusion that if the gate under consideration had not been there, McGuffin and Baldwin would not have met their deaths but would have passed on in safety. This raises the direct question whether the red lantern, suspended in the manner shown by the testimony, was not such as to mislead both of the deceased persons. It also presents a question of fact as to whether the gate thrown across the improved highway, lighted only by a red lantern swung beneath it, was so placed and so operated as to reasonably warn an approaching automobile driver, and so as to be perceived by him at a reasonable distance, to enable any one lawfully using the same to bring his automobile to a stop before reaching the gates. If the gate was not, under the conditions, readily perceivable by an automobile driver at such a distance therefrom as to enable him to bring his machine to a stop, then and in that case it was a menace and not a safety gate. If the gate was not so perceivable at a sufficient distance to warn one of its existence in time to stop, and this is especially true where the evidence does not show that the deceased had knowledge of the railroad, then the jury might have found that the management of the gate constituted a direct and proximate cause of the injury, for the simple reason that upon perceiving the existence of the gate, an automobile driver might very readily, in the emergency calling for sudden action in attempting to stop his machine, stall it upon the railroad track. Almost identical with the situation here presented are the circumstances disclosed in the case of Record v. Pennsylvania R. Co. et al., 76 N.J.Law, 800, 72 A. 62, where the charge was that the gateman had neglected to place warning lights upon a gate suspended across a street, and an automobile driver, failing to see the gate in time to avoid a collision therewith, turned his automobile to one side in order to avoid a collision with the gate and came in contact with a trolley pole. The writer of the opinion in that case used the following language: "By the mere erection of the safety gates the company recognized the crossing as a dangerous one. (Smith v. Atlantic City R.R. Co., 66 N.J.Law, 310, 49 A. 457; 3 Elliott, R.R. 1171.) Without proper management such a fixture, when constructed across the public thoroughfares, would become a public nuisance per se. It is the settled law that the public streets and sidewalks are presumed to be free from obstructions to the full width (Durant v. Palmer, 29 N.J.Law, 544), and an intention to obstruct the public streets by the law-making power of a municipality will not readily be inferred by the courts." It is true that in this case an ordinance required the maintenance of a safety gate and the maintenance of lights at nighttime to indicate its presence. But as we will subsequently show by the authorities, if the maintenance of safety gates is voluntarily assumed, they must be operated with the same care and prudence as though required by ordinance or statute. A case bearing the same title, to wit, Record v. Pennsylvania R. Co. et al., reported in 75 N.J.Law, 311, 67 A. 1040, in an appeal by a different defendant in the same case, it appears from the facts that the driver of the automobile, in order to avoid a collision with the gates, turned to one side and came in contact with a trolley pole. The court there held as in the former case relative to the maintenance of the gate without lights, and further said: "Nor do we think that the sudden turning of the car by the plaintiff in the face of danger showed such a want of reasonable care as to make his alleged negligence a court question." The testimony in that case showed that the automobile driver was not familiar with the railroad crossing, having only passed over it once or twice. That the duty voluntarily assumed by the railroad companies in this case is exactly the same as it would have been if required by statute is amply supported by the authorities.
In the case of Pennsylvania R. Co. v. Charles E. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398, involving the operation of a safety gate, we find the following statement of the law: "If the accident, however, had taken place during the period of time when the defendant had voluntarily assumed to safeguard the crossing by a watchman or gateman, through the failure of the watchman or gateman to discharge his duty by reason of his absence, failure to signal, or to lower the gates, or of any other proximate default, there can be no question that the failure thus to discharge an obligation voluntarily assumed would have been negligence on the part of the company, as is illustrated by the cases cited by the appellee. Chicago & A.R. Co. v. Wright, 120 Ill.App. 218; Lockridge v. Minneapolis & St. L.R. Co., 161 Iowa, 86, 140 N.W. 834, Ann.Cas.1916A, 158; Roby v. Kansas City Southern R. Co., 130 La. 880, 41 L.R.A.(N.S.) 355, 58 So. 696; Sights v. Louisville & N.R. Co., 117 Ky. 436, 78 S.W. 172; Dolph v. New York, N.H. & H.R. Co., 74 Conn. 538, 51 A. 525; Chicago & A.R. Co. v. Blaul, 175 Ill. 183, 51 N.E. 895; McAdoo v. State, 136 Md. 452, 111 A. 476; Ernst v. Hudson River R. Co., 39 N.Y. 61, 65, 100 Am.Dec. 405." And further, in the same case, the court says: "The undertaking to perform a voluntary act renders the [defendant] liable if he performs it improperly, but not if he merely discontinues the act." Again, in the case of Gallagher v. Montpelier & W.R.R.R., 100 Vt. 299, 137 A. 207, 52 A.L.R. page 744, the Supreme Court of Vermont, in considering the maintenance of gates, adopted the rule which we have stated. We quote therefrom as follows: "While it appears to be well settled that where a railroad company maintains a flagman, gates, or other signals or warnings at a crossing, whether voluntarily (Dolph v. New York, N.H. & H.R. Co., 74 Conn. 538, 51 A. 525; Martin v. Baltimore & P.R. Co., 2 Marv. [Del.] 123, 42 A. 442), or by statutory requirement, the public generally has a right to presume that such safeguards will be reasonably maintained and attended (Chicago & A.R. Co. v. Blaul, 175 Ill. 183, 51 N.E. 895), and in the absence of knowledge to the contrary (Sights v. Louisville & N.R. Co., 117 Ky. 436, 78 S.W. 173; Stegner v. Chicago, M. & St.P.R. Co., 94 Minn. 166, 102 N.W. 205; 17 Am.Neg.Rep. 574), the fact that the gates are open (Stegner v. Chicago, M. & St.P.R. Co., supra), or automatic bell not ringing (Cleveland, C., C. & St.L.R. Co. v. Heine, 28 Ind.App. 163, 62 N.E. 455), or that the flagman is absent from his post, or, if present, is not giving a warning of danger (Dolph v. New York, N.H. & H.R. Co. and Martin v. Baltimore & P.R. Co., supra), is an assurance of safety upon which a traveler familiar with the crossing may rely, within reasonable limits, such assurance does not excuse the traveler from using such precaution as a prudent person would use in like circumstances. 33 Cyc. 1029, 1030." Likewise, in 22 Ruling Case Law, p. 1006, § 235, we find the following: "And although a railroad company may be under no duty to construct gates at a crossing, if a company does so, it is bound to operate the same in a prudent manner and is liable for injuries due to a failure to perform its duty." In volume 3 (2d Ed.) Elliott, Railroads, § 1171, the law is thus stated: "It is the duty of a railway company to exercise ordinary care in the management of gates at crossings, and it is responsible to a traveler who is himself without fault and is injured by a negligent management of such gates." As heretofore stated, in the case at bar the lower part of the gate was 3 ½ feet above the improved portion of the public highway, and the defendants, in erecting and maintaining that gate and placing it across the highway at nighttime, must be held to have had knowledge of the law regulating the adjustment of headlights which, if the law is observed, brings the rays of light from an automobile to the surface of the highway at a specified distance, and so presents a fact whether, without sufficient lighting by the defendant, an approaching automobile driver, having no knowledge of the existence of the railroad, would have warning of the lowered gate, by reason of his headlights disclosing the presence thereof at a sufficient distance to enable the automobile to be brought to a stop at a safe distance from the railroad. In all these matters instruction No. XXIX was well calculated to mislead the jury.
We come next to a consideration of instructions numbered XVI and X. The very case relied upon by the respondents to support their request for the giving of these instructions is predicated upon an element which is entirely lacking so far as disclosed by the testimony in the case at bar. We refer to the case of Christman v. Southern P. Co., 38 Cal.App. 196, 175 P. 808. The court in that case used the following language, which distinguishes the circumstances there presented from those which we are considering, to wit: "With complete knowledge that he was approaching a railroad crossing which he knew to be regularly in use, he drove his auto truck at a rate of speed so great that, as he himself knew, his machine was bound to go upon the track, at all times after the moment of his first opportunity to look for the train. Having thus neglected the most obvious precautions for taking care of his own safety at a time and place where he had ample opportunity to use those precautions, the plaintiff is not entitled to recover damages for the injuries received." Had instructions XVI and X been predicated upon the knowledge of the deceased of the presence of the railroad crossing, or been predicated upon circumstances sufficient to give an approaching automobile driver reasonable notice of the presence of a railroad crossing, then and in that case the duty imposed by the instructions upon the automobile driver would have applied. However, with the testimony showing no knowledge, of either McGuffin or Baldwin, of the presence of the railroad in question, and also without any allusion to, or mention of, the presence of circumstances sufficient to warn persons of the existence of the railroad, the court charges "that it was the duty of Mr. McGuffin, in approaching this crossing, to approach the same with his automobile under such control," etc. The language is the same in both instructions, charging as a matter of fact with regard to the crossing. The law, of course, is well settled that any one approaching a railroad crossing of which he has knowledge, or of which the circumstances are such as to give him reasonable notice of the existence thereof, must stop, look, listen, etc., and exercise his faculties to safeguard himself; but to instruct the jury, without any consideration of the knowledge of the existence of the railroad, or of there being any facts and circumstances to indicate its presence, that the automobile driver was under the legal obligation to stop, look, and listen to avoid the charge of contributory negligence, is not to correctly state the law as applied to the circumstances of this case.
We do not deem it necessary to consider the refusal of the court to give certain instructions requested by the plaintiffs, as those questions may not arise on a subsequent trial.
In view of the facts of this case and the different conclusions which might properly be reached by the jury, we are of the opinion that section 4 ½ of article 6 of the Constitution cannot be held to cure the errors of the trial court in giving the instructions requested by the respondents.
The judgments are reversed.
We concur: FINCH, P.J.; SHIELDS, Justice pro tem.