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Sheets v. Southern Pac. Co.

District Court of Appeals of California, First District, First Division
Sep 30, 1930
292 P. 186 (Cal. Ct. App. 1930)

Opinion

As Modified on Denial of Rehearing Oct. 30, 1930

Hearing Granted by Supreme Court Nov. 24, 1930.

Appeal from Superior Court, San Mateo County; George H. Buck, Judge.

Action by George L. Sheets against the Southern Pacific Company and others. Verdict for plaintiff, defendant’s motion for new trial was granted, and plaintiff appeals.

Reversed. COUNSEL

George C. Hadley and J. Horton Beeman, both of San Francisco, and Franklin Swart, of Redwood City, for appellant.

Dozier & Kimball and Christian F. Kimball, all of San Francisco, and Kincaid & Fitzpatrick, of Redwood City, for respondents.


OPINION

PER CURIAM.

This action is one for damages for personal injuries sustained by the plaintiff through the alleged negligence of defendant corporation. The latter denied the negligence alleged, and as a defense alleged contributory negligence on the part of the plaintiff. The case was submitted to a jury which returned a verdict for the plaintiff in the sum of $7,500. Defendants moved for a new trial, which was granted, and plaintiff has appealed from the order.

The accident occurred shortly after 5 o’clock p.m. on November 30, 1928, at the intersection of the Middlefield road, a public highway, and the tracks of the defendant company in the outskirts of Redwood City. The plaintiff, who was familiar with the crossing, was driving a motor truck north along the highway, which runs approximately north and south. The railroad tracks cross the highway obliquely at an angle of about 35 per cent., and extend in a general northwesterly and southeasterly direction. The truck which plaintiff was operating was struck at the crossing by a single freight car, moving in a northwesterly direction under the momentum previously imparted to it by a locomotive in the course of making a flying switch. Previous to the approach of the locomotive, the truck arrived at the crossing and stopped on the southerly side thereof upon the signal of a brakeman stationed at the crossing to protect traffic. When some distance from the crossing the locomotive was detached from the freight car while both were in motion and continued on across the highway. After the locomotive had crossed the brakeman turned and left the crossing in the direction the locomotive was traveling, whereupon the plaintiff started to cross, and the truck was struck by the oncoming freight car, causing the injuries complained of.

The motion for a new trial was based upon the fifth, sixth, and seventh subdivisions of section 657 of the Code of Civil Procedure, and was granted without specifying upon which the order was made. Under the above section it must be presumed that the order was not based upon the insufficiency of the evidence to justify the verdict, and the plaintiff claims that the record discloses no other ground for making the order. Under the circumstances we are precluded from considering the question of the insufficiency of the evidence unless it was insufficient as a matter of law. Yoakam v. Hogan, 198 Cal. 16, 243 P. 21; Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 18 L.R.A. 124; Read v. Pacific Electric Ry., 185 Cal. 520, 197 P. 791. But defendant claims that plaintiff was shown to have been guilty of contributory negligence as a matter of law; also that certain instructions were prejudicially erroneous, and that the amount awarded as damages raises the presumption that the jury was influenced by passion and prejudice.

It was stipulated that on the evening of the accident the sun set at 4:40 o’clock p.m., and, according to the testimony, the accident happened at about 5:15 o’clock p.m. At each end of the truck seat curtains were placed, through each of which an aperture 10 inches square had been cut and covered with a transparent sheet of isinglass. Although it was dusk, the plaintiff testified that he could see ahead 300 feet and objects distinctly 50 feet, but that objects were less visible through the isinglass. He further testified that before starting to cross he looked through the curtain in the direction of the approaching freight car, but did not see or hear it. He admitted that by leaning forward he might have looked around the curtain, but failed to do so. He also admitted that on the opposite side of the crossing was placed a signal which gave warning by means of a bell and a moving arm, called a wigwag, but that he did not notice whether this signal was operating at the time he attempted to cross. As stated, the testimony also shows that, when the locomotive had passed, the brakeman or flagman who signaled plaintiff to stop left the crossing and walked in the direction of the locomotive, and it was then that the plaintiff moved his truck forward. The latter in this connection testified, in substance, that he depended to a certain extent upon the flagman and would not have attempted to cross had the latter remained upon the crossing. It was also testified that a brakeman with a lighted lantern was standing upon the forward end of the approaching freight car, but according to the plaintiff he did not see either the brakeman or the lantern. Other witnesses testified to the unsuccessful efforts of the trainman and others to direct plaintiff’s attention to the approaching car. As has often been held, a railroad crossing is itself an effectual warning of danger which must always be heeded, and the failure to exercise ordinary care in passing over such a place will not be excused by the negligent omission of the railroad company to exercise such care. Green v. Southern California Ry. Co., 138 Cal. 1, 70 P. 926. Nor is it the law that, where a railroad adopts safety appliances or other methods of warning or protection, the crossing travelers are absolved from the duty of exercising ordinary care for their own safety (Koch v. Southern California Ry. Co., 148 Cal. 677, 84 P. 176, 4 L.R.A.[[N.S.] 521, 113 Am.St.Rep. 332, 7 Ann.Cas. 795), but a railroad company will not be permitted to encourage a relaxation of vigilance by assurances that the danger has been minimized and at the same time hold persons to the same quantum of care as if no safety measures had been adopted (Gregg v. Western Pacific Ry. Co., 193 Cal. 212, 223 P. 553). Again, it has been held in numerous decisions that the practice of making flying switches is inherently dangerous [[Elliott on Railroads (3d Ed.) § 1813], and, where it appears that the injury complained of was so occasioned, the inferences drawn from the facts are not the same as those arising from the circumstances of the ordinary collision, as it usually appears that the injured person had not the same opportunity to discover the danger (22 Cal.Jur., Railroads, § 65, p. 312). While the cases hold that, when to look is to see, testimony that one did look and could not see will be disregarded (Zibbell v. Southern Pacific Co., 160 Cal. 237, 242, 116 P. 513), we cannot say, in view of the conditions as to visibility at the time of the accident, that plaintiff’s testimony that he looked and could not see the approaching freight car is not true, nor that, had he looked around the curtain instead of through the isinglass, he would have discovered the danger. Neither can we say that the action of the flagman in leaving the crossing, taken in connection with the fact that the locomotive had crossed the highway, was not a fact which would reasonably justify the conclusion that the danger was past. Following the case of Gregg v. Western Pacific Ry. Co., supra, wherein the facts were analogous, we are of the opinion that the question whether plaintiff under all the circumstances exercised ordinary care for his own safety was one for the jury.

According to the testimony of a physician who treated the plaintiff for a period of about two and a half months after the accident, he suffered a fracture of the hip bone extending down toward the hip joint and of the second and third left lumbar vertebrae in the transverse process, and also of the socket in which the hip bone sets. He also received extensive bruises, from all of which he suffered pain, and the physician was unable to state whether he would completely recover from his injuries. In view of this testimony, the amount of the verdict was not such as to necessarily lead to the conclusion that the jury was influenced by passion or prejudice. Moreover, the question involves a sufficiency of the evidence to justify the amount of the verdict (Doolin v. Omnibus Cable Co., 125 Cal. 144, 57 P. 774; Graybill v. De Young, 140 Cal. 327, 73 P. 1067; Zibbell v. Southern Pacific Co., supra), and, the order not having declared that it was based upon the ground of excessive damages, we are bound to assume that such was not the fact (Griffey v. Pacific Electric Ry. Co., 58 Cal.App. 509, 209 P. 45; Meinberg v. Jordan, 29 Cal.App. 760, 157 P. 1005, 1007; Tasker v. Cochrane, 94 Cal.App. 361, 271 P. 503).

Defendant complains of the following instructions which were given at the request of plaintiff. On the question of contributory negligence the jury was instructed that it was to be presumed in the absence of evidence that plaintiff did all that a reasonably prudent man would do for his own safety. While it has been held that this presumption should be given weight only in the absence of evidence (Larrabee v. Western Pacific Ry. Co., 173 Cal. 743, 747, 161 P. 750), the instruction was nevertheless proper. It was not in conflict with others given by the court, and was a correct statement of the law (Code Civ.Proc. § 1963, subd. 4). The following instruction was also given: "If you believe that plaintiff used that degree of care and caution for the protection of his own safety which a reasonably prudent person under similar circumstances would have exercised, I instruct you that plaintiff was not guilty of contributory negligence, and if you further believe that the defendants were guilty of negligence which proximately caused the collision, then your verdict should be in favor of plaintiff." Defendant contends that here the jury was erroneously instructed that they might base their verdict upon their belief as to the facts without reference to the evidence. While it is the duty of the jury to confine their deliberations to the evidence, we are of the opinion that they would, being reasonable men, understand from this, together with other instructions, that the court referred to their belief based upon the evidence, and such was the view respecting a similar instruction in Wood v. Los Angeles Traction Co., 1 Cal.App. 474, 82 P. 547. The jury was further instructed that: "There is a doctrine in law known as contributory negligence. When a defendant charged with negligence urges this defense for the purpose of defense he admits his own negligence, but urges that the plaintiff was also negligent and that the negligence of the plaintiff so charged was a contributing cause of the accident. To sustain such defense it is not enough that plaintiff happen to have been negligent, but it must appear as well that his negligence was a proximate cause of the accident." It is well established that a plea of contributory negligence does not admit the negligence charged in the complaint so as to dispense with proof of such negligence by plaintiff. Hoffman v. Southern Pacific Co., 84 Cal.App. 337, 258 P. 397. The defense is nevertheless predicated upon the existence of negligence on the part of the defendant, the responsibility for which he avoids by showing concurrent and contributing negligence upon the part of the person injured. Crabbe v. Mammoth Channel Gold Mining Co., 168 Cal. 500, 143 P. 714. This, we think, was the plain meaning of the instruction, the jury being told that the admission upon which the plea was predicated was made only "for the purpose of defense." This was a correct statement of the law, and, if the instruction was deficient by reason of its generality, it was defendant’s duty to request that the charge in this particular be made more specific. No such request was made.

While all presumptions are in favor of an order granting or denying a new trial, and the burden is upon appellant to show that the order was erroneous (2 Cal.Jur., Appeal and Error, § 522, p. 887), in the present case there appears no support for the order on the ground of errors of law at the trial or that the plaintiff was guilty as a matter of law of negligence contributing to his injury. Although different conclusions on the issues of fact might reasonably have been drawn from the evidence, and an order specifying the insufficiency of the evidence to justify the verdict would have been supported, no order on that ground having been made, no reason is disclosed by the record for granting a new trial, and under the circumstances we are forced to the conclusion that the order was erroneous and should be reversed.

The order is reversed.


Summaries of

Sheets v. Southern Pac. Co.

District Court of Appeals of California, First District, First Division
Sep 30, 1930
292 P. 186 (Cal. Ct. App. 1930)
Case details for

Sheets v. Southern Pac. Co.

Case Details

Full title:SHEETS v. SOUTHERN PAC. CO. et al.[*]

Court:District Court of Appeals of California, First District, First Division

Date published: Sep 30, 1930

Citations

292 P. 186 (Cal. Ct. App. 1930)