Opinion
Hearing Granted by Supreme Court Feb. 14, 1929
Appeals from Superior Court, Orange County; Z.B. West, Judge.
On petition for rehearing. Application denied.
For former opinion, see 273 P. 155.
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.M. Reinhaus, of Santa Ana, for respondents.
OPINION
PER CURIAM.
The statement in the petitioner’s application for a rehearing herein that there is other testimony in the record that there was a full moon on the night of May 18, 1924, other than that shown by the World’s Almanac, is correct. But what we have said in our main opinion, that there was sufficient testimony in the record to justify the jury in coming to the conclusion that the night was dark, as well as the conclusion that the night was light, is a matter which we think cannot be reasonably questioned. However, as petitioners have set forth the testimony introduced by the defendants to show that the night was light, and that the conditions were such that the railroad crossing and gates should have been perceived by the occupants of the automobile that came in collision with the electric car, we are under the necessity of calling attention to the testimony of other witnesses from which the contrary conclusion might be drawn. The witness McKarley testified that the weather was "rather dark"; that the weather was "misty"; that the crossing was "dark." The witness Charles Bates testified that the weather was "dark and gloomy"; that the crossing was "dark"; that he heard no whistle. McKarley also testified that he heard no whistle. Bates testified that the light in the tower did not illuminate the crossing. The witness Handley testified that he heard neither bell nor whistle. The witness Meade testified: "I should say it was a dark night." This witness, however, further testified that as to conditions he paid little attention. The witness Bessie Handley, who was driving an automobile a short distance in the rear of the one coming in collision with the electric car, testified: "The weather was extremely dark." The witness Albert A. Parker, after testifying as to the sobriety and industry of the deceased, said: "It was rather dark all along the road; there were places it was foggy, and some fog just this side of where the accident occurred." The testimony of these witnesses, whether correct or incorrect, does not appear to have been shaken upon cross-examination, and is sufficient to support a finding that it was dark at the crossing, and even foggy, just as stated by the witness Parker. Whether it was, in fact, light at the crossing or dark, was a matter for the jury, and therefore what we have said as to the court’s instructions relative to the maintenance of gates, and the law which we have cited relative to the maintenance of gates across a highway at nighttime, unquestionably applies. In the case of the testimony which we have cited the court could not assume that the conditions were such as to reveal the presence of the gate in time for an automobile to stop, without the gate being properly lighted. These are questions of fact, and presented conditions which render a giving of instruction No. 29 prejudicially erroneous, for the simple reason that the jury might, and we think would ordinarily, infer therefrom that no obligation whatever rested upon the defendants to have the crossing gate properly lighted.
Petitioners also call our attention to the existence of a post bearing two cross-arms on which is written the words "Railroad Crossing," and that this is shown by a photograph introduced in evidence. If the perspective of the photograph is correct, this post with the cross-arms was located within a very few feet of the rails of the electric road, and partly behind a telephone or telegraph pole. The location of this post and cross-arms is so close to the electric railroad that the jury might very readily conclude that it would give no adequate warning to an approaching automobile driver in time to stop before reaching the track. Instead of being placed some distance from the track where the sign might serve some useful purpose, it appears to be so close that we cannot say, as a matter of law, it is of any significance whatever in affording protection to users of the highway. Again, it is argued that it is only conjecture that the one red light, swung from the gate in the position which we have heretofore stated, might readily have been mistaken for the tail-light of another automobile, and so misled the deceased. The physical facts show that the driver of the fatal car turned to the left to avoid striking the red light. That is just exactly what an automobile driver always does in attempting to pass a machine traveling in front of him. And the testimony is to the effect that the fatal car was on the left side of the improved portion of the highway, or what is sometimes called the concrete slab. As pointed out in our main opinion, the red light was in a position very similar to that which the red tail-light of a car would be if the red light is over the left fender of the machine— the place where it is very commonly located. From these facts the inference might very readily be drawn which we have stated. An inference which may be drawn from facts does not fall within the terms of cases having to do with conjectures.
Again, petitioners argue that the testimony shows the deceased familiar with the crossing. We stated in our opinion that there was no testimony showing such fact. That there was no such testimony as to justify the conclusion of the court that the deceased was familiar with the crossing, we will set it forth. Testimony of Mrs. McGuffin: "Q. Had you ever been over that road before, Mrs. McGuffin? A. Well, we wasn’t regular travelers over it but had been over it sometimes. Q. You and your husband had been over this road? A. Occasionally; not very often. Q. Over this crossing before? A. Once in a while; not very often." We submit that this testimony does not show familiarity with the crossing; much less is it sufficient to warrant the court in giving an instruction which assumes such knowledge.
In the case of Record v. Pennsylvania R. Co., 75 N.J.Law, 311, 67 A. 1040, and Id., 76 N.J.Law, 800, 72 A. 62, the testimony of the plaintiff himself was: "That he had been over this road only once or twice before, and that he did not remember this crossing, which was not upon an embankment, but flush with the street." These cases were cited in our main opinion and show that the testimony relied upon by petitioners is wholly inadequate to justify the conclusion that the deceased was familiar with the crossing, and so instruct as a matter of law.
In the case of Christman v. Southern Pacific Co., 38 Cal.App. 196, 175 P. 808, referred to in our main opinion, where the court gave an instruction as to the duty to stop, look, and listen, and uses the language, where one has complete knowledge that he was approaching a railroad crossing, it also appears from the opinion that "prior to the day in question the plaintiff had driven over this crossing eight or ten times and knew that the railroad track was there." The distinction between the circumstances is so apparent as to render comment unnecessary.
The petition for rehearing is denied.