From Casetext: Smarter Legal Research

Jansen v. Southern Pacific Co

Court of Appeals of California
Jun 6, 1952
244 P.2d 929 (Cal. Ct. App. 1952)

Opinion

6-6-1952

JANSEN et al. v. SOUTHERN PACIFIC CO. et al. * Civ. 8074.

Devlin, Diepenbrock & Wulff, Sacramento, for appellant. Thomas C. Perkins, Sacramento, for respondent.


JANSEN et al.
v.
SOUTHERN PACIFIC CO. et al. *

June 6, 1952.
Rehearing Granted July 3, 1952.

Devlin, Diepenbrock & Wulff, Sacramento, for appellant.

Thomas C. Perkins, Sacramento, for respondent.

PEEK, Justice.

This is an appeal by defendant Southern Pacific Company from a judgment in favor of plaintiffs Carl V. and Meryl Jansen. husband and wife, in an action to recover for injuries alleged to have been sustained by them as the result of a collision between their automobile and a switch engine owned and operated by the defendant company. Specifically defendant's appeal is from the order of the court denying its motion for a judgment notwithstanding the verdict made before the entry of judgment, from the whole of said judgment and from the order denying defendant's motion for a judgment notwithstanding the verdict made in the alternative with a motion for a new trial after the entry of judgment.

The evidence, viewed as we must in the light most favorable to respondents, shows that on December 17, 1949, and sometime between the hours of 6:30 and 7:30 o'clock p. m. plaintiffs were driving northerly on Thirty ninth street, a heavily traveled arterial street, in the city of Sacramento. The evening was quite cold, cloudy and dark. Mr. Jansen, who was driving, and his wife who was riding in the front seat of their sedan with him, were acquainted with the crossing in question as would any person who had lived in a community for a number of years. Thirty ninth street is approximately 36 feet in width. It crosses over the privately owned right of way of the defendant company at what is commonly known as R Street. The right of way at that point is approximately 99 feet in width, near the center line of which the company maintains a single track. No regularly scheduled trains operate on said track but it is used occasionally for the purpose of switching. There is no mechanical warning device at the crossing, the only warning is the usual cross-arm railroad sign. The intersection is lighted by one 325 watt street light located approximately in the center of Thirty ninth street at a point 75 feet north of the center line of the railroad tracks and approximately 27 feet above the ground. Respondents' view of the right of way was obstructed to a degree by houses and trees along both sides of the street. To the east, the direction from which the engine was coming, the view was obstructed by a hedge and trees in the yard of the house immediately adjacent to the right of way. Also in the right of way itself was a large oak tree approximately 87 or 88 feet east of the easterly boundary of Thirty ninth street and approximately 20 feet south of the boundary on the right of way. Immediately before the collision respondents were proceeding at a speed of between 15 to 20 miles per hour. The train was approaching at a speed of approximately 6 to 10 miles per hour.

The evidence was sharply in conflict as to whether or not a bell, whistle or other warning was sounded and whether or not the headlight on the engine was lighted. However, both plaintiffs and a passenger in a car which was immediately following them, testified they noticed no light nor did they hear any whistle or bell. The testimony was also conflicting as to whether or not the window on the driver's side of the car was open. The plaintiff, Carl Jansen, testified that he looked to his left and then to his right before reaching the southerly boundary of the right of way, his speed remaining constant at the rate of approximately 15 miles per hour; that upon entering the right of way area he again looked to the left and to the right, looking lastly to the right just prior to the impact and just as he was moving on to the track. His wife further testified that she looked to the right and saw the engine just prior to the impact. The engineer was seated on the right side of the cab which was located at the rear of the engine. Thus the fireman who was seated on the left side of the cab was the only trainman who could observe traffic approaching from the south. He testified that he first saw plaintiff's car when it was approximately 140 to 150 feet from the crossing and that the engine was approximately 25 feet from the crossing; that he gave no warning to the engineer of the approaching automobile; that as the front of the engine was entering the crossing he realized respondent Jansen was not going to stop and that he then gave a warning to the engineer.

The two contentions made by appellant, neither of which is well founded, are: (1) That respondents were guilty of contributory negligence as a matter of law in that they failed to exercise proper care before crossing the track, and (2) that the court erred in giving and in refusing to give certain instructions.

In support of its first contention the defendant argues that since the crossing was known to plaintiffs and since it was unguarded there was placed upon them a 'special duty of care', citing the usual case of Koster v. Southern Pacific Co., 207 Cal. 753, 279 P. 788, and a recent case of this court, Shirk v. Southern Pacific Co., 103 Cal.App.2d 97, 229 P.2d 100. We do not understand the Koster case to so hold. Nor did this court so hold in the Shirk case. Statements from these cases such as defendant quotes and relies upon in its brief cannot be so taken out of context and used as defendant does to support its contention that the courts in the cases cited have enunciated what defendant terms a 'special duty of care rule' and that such purported rule is applicable to the present case.

Attempts to reduce negligence to rigid rules have never been successful. Rarely, if ever, will the facts of any two cases be identical. Hence, 'The effort should be to apply settled principles of law to the the facts in the particular case as they existed at the scene of the injury, rather than determine the matter by matching cases.' Antonian v. Southern Pacific Co., 9 Cal.App. 718, 734, 100 P. 877, 884.

As stated in Toschi v. Christian, 24 Cal.2d 354, 360, 149 P.2d 848, 851, 'Standards of care are typically relative; rules of law are basically absolute. Hence, in regard to negligence, any attempt to screen factual conduct into legal classifications through a sieve of absolute law will be impracticable whenever the related circumstances admit of materially conflicting inferences.' In other words, as the court there states: 'the actor's conduct must always be gauged in relation to all the other material circumstances surrounding it and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law.'

Appellant's remaining contention relates to an asserted error in the instructions given by the trial court. These contentions are that the court erred in (1) failing to instruct the jury that there was a special duty of care imposed upon the driver of a vehicle approaching a railroad crossing; (2) refusing to instruct the jury in particular language chosen by the defendant from the Koster case; (3) instructing the jury that the fireman on defendant's switch engine had a duty of care, not placed upon him by law, and (4) that the instruction given, predicated upon section 486 of the Civil Code, was erroneous in that the jury was informed it was the duty of defendant to ring a bell at the intersection.

Since the first two contentions are but a re-argument of appellant's first main contention, suffice it to say that the jury was instructed in accordance with the views herein expressed relative to that contention; and hence what has heretofore been said in that regard is equally applicable here.

Appellant next argues that the court's instruction that 'It was the duty of the fireman to exercise the same care that a reasonably prudent person in the same circumstances would in observing approaching automobiles and in warning the engineer of their presence', erroneously instructed the jury that the fireman had a duty not placed upon him by law, to-wit, 'to warn the engineer that automobiles are approaching the crossing', and that such a duty is contrary to law relative thereto as laid down in Billig v. Southern Pacific Co., 192 Cal. 357, 363, 219 P. 992.

Appellant further asserts that 'the respondents make the same erroneous contention as to the subject matter under this heading as they do in all of the other points in their brief, that is, they contend that the reasonably prudent person rule is applicable, whereas the law lays down a specific standard of conduct.' We cannot agree with this argument.

The jury was instructed that the fireman in acting as a lookout had the duty 'to exercise the same care that a reasonably prudent person in the same circumstances would in observing approaching automobiles and in warning the engineer of their presence.' (Emphasis added.)

The duty specified, as we read the instruction, was not 'to warn the engineer that automobiles are approaching the crossing', but to observe and warn of approaching automobiles in the same manner as would a reasonably prudent person under the same circumstances. We find nothing in the Billig case to the contrary. The standard of conduct is always the same, that is, 'reasonable care under the circumstances.' Cooper v. Southern Pacific Co., 43 Cal.App.2d 693, 703, 111 P.2d 689. The Billig case is merely an exposition of what conduct on the part of the fireman would constitute reasonable care under the circumstances.

Appellant's final contention relates to an instruction given at the request of respondents relative to the duty of defendant under the provision of section 486 of the Civil Code. The court first instructed the jury in the precise language of said section and then continued with the instruction which defendant now attacks, and which is as follows: 'You are instructed therefore that it was the duty of the defendants traversing the intersection of its tracks with 39th Street and for a distance of at least 1,320 feet before reaching 39th Street to ring a bell as required by the Statute, and if you find that the defendants failed to comply with said section 486 of the California Civil Code, just read to you, and that the failure to so comply was the proximate cause of the collision and of the plaintiffs' resulting damage, and that plaintiffs were not guilty of contributory negligence you must return a verdict for the plaintiffs.'

However, that was not the only instruction on that subject; in fact there were two more which the court gave. The following instruction, which respondents state was given at the request of appellant, and which statement appellant has not denied, was as follows: 'I have stated to you heretofore that it was the duty of the defendants to give statutory signals, and I desire to instruct you further that the obligation to give satisfactory signals is necessarily controlled by our statutes and in cities the said statute provides 'that a bell of at least twenty pound weight must be placed on each locomotive engine and must be rung a distance of at least eighty rods from the place where the railroad crosses any street, road or highway, and be kept ringing until it has crossed the street, road or highway;' that in cities there is no statutory obligation for the defendants to sound any steam or other whistle as a warning of the engine's approach to such crossing. Of course, the railroad may, if it so desires, go beyond the terms of the statute and cause both the bell to be rung and the whistle to be sounded.'

Immediately following that instruction was a third instruction by which the jury was told: 'under the statute which deals with sounding of whistle or bell by a steam locomotive 'it is the sounding or giving of the' warning and not the hearing of it which determines the question of statutory violation. On this phase of the case, the only issue is whether a signal, as required by the statute, was sounded. If you find that a signal was sounded as required by the statute, the fact that it may not have been heard by some person, is not ground for finding that the statute was violated, or that the railroad or its employees were negligent.'

As previously stated, appellant contends the court, by the first quoted instruction, erroneously instructed the jury, and such error was prejudicial. Whether the law is as appellant here contends or whether Civil Code section 486 may be complied with by either ringing a bell or sounding a whistle we need not determine. Appellant, as appears from the instruction which it requested and which was given, believed the law to require it to ring a bell in cities at all events, but that if it chose it could also sound a whistle warning. Having received instructions in conformity with its view of the law it cannot now contend that such a statement of the law was erroneous and prejudicial to it. It is well established that 'A party cannot complain of an instruction given at his own request, or of an error in an instruction given at the instance of his adversary, when he requests a substantially similar one.' Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51, 186 P. 772, 774. See also Cedzo v. Bergen, 53 Cal.App.2d 667, 675, 128 P.2d 683; Benton v. Douglas, 82 Cal.App.2d 784, 787, 187 P.2d 469; Blythe v. City and County of San Francisco, 83 Cal.App.2d 125, 132, 188 P.2d 40.

The judgment and orders are affirmed.

ADAMS, P. J., and VAN DYKE, J., concur. --------------- * Subsequent opinion 247 P.2d 581.


Summaries of

Jansen v. Southern Pacific Co

Court of Appeals of California
Jun 6, 1952
244 P.2d 929 (Cal. Ct. App. 1952)
Case details for

Jansen v. Southern Pacific Co

Case Details

Full title:JANSEN et al. v. SOUTHERN PACIFIC CO. et al. * Civ. 8074.

Court:Court of Appeals of California

Date published: Jun 6, 1952

Citations

244 P.2d 929 (Cal. Ct. App. 1952)