Opinion
Rehearing Denied Feb. 20, 1947.
Hearing Granted March 31, 1947.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Actions by Leonard Roy Spendlove and Oleda Harrison against Pacific Electric Railway Company to recover for personal injuries sustained when defendant’s electric inter-urban car struck automobile in which plaintiffs were riding. The cases were consolidated for trial in superior court. From judgments in favor of defendant predicated upon granting of defendant’s motions for nonsuit, plaintiffs appeal.
Judgments affirmed.
COUNSEL
Westover & Smith and Joseph D. Taylor, all of Los Angeles, for appellants.
C. W. Cornell, O. O. Collins and Malcolm Archbald, all of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
This is an action for personal injuries resulting from an accident which occurred when defendant’s electric interurban car collided with an automobile occupied by plaintiffs and a driver, Zearl Draper, the nineteen year old son of plaintiff Harrison. The two cases were consolidated for trial in the superior court and from the judgments in favor of defendant predicated upon the trial court’s granting defendant’s motion for a nonsuit, plaintiffs appeal.
Viewing the evidence most favorable to plaintiffs as we must in reviewing a judgment based upon a motion for a nonsuit, the material facts are these:
Diagram of the intersection where the accident hereinafter described occurred:
(Image Omitted)
The driver of the automobile testified that on December 23, 1944, about 4:00 p. m. defendant was operating a baggage car in a southerly direction on track No. 3 north of the intersection of the right-of-way with 60th street in Los Angeles at a speed of about 40 miles per hour; that the car in which plaintiffs were riding was proceeding in a westerly direction on 60th street and as it approached the right-of-way the driver noticed a wigwag operating which had been actuated by a Watts local moving in a southerly direction on track No. 4; that the car in which plaintiffs were riding came to a stop a number of feet east of track No. 1 to await the passing of the Watts local over the crossing. After he had noticed that the wigwag had stopped he looked to the north and proceeded onto the right-of-way at a speed of about 5 miles per hour. When the automobile had reached track No. 1 there was nothing to obstruct his view to the north as far as the eye could see, and he did not see the car that hit the automobile which he was driving until he reached the third track.
There were no obstructions to a view of the train approaching from the north excepting a telegraph pole to the right of 60th street and several other poles located 100 feet apart, also to the north of 60th street and west of the right-of-way. The baggage car involved in the accident was 55 feet long, 9 feet, 2 inches wide, 13 feet, 4 ½ inches high and weighed 103,800 pounds unloaded. From the telegraph pole above mentioned it was 35 feet to the point of collision, and there was no obstruction whatsoever to a view of any train approaching from the north.
There are two questions necessary for us to determine which will be stated and answered hereunder seriatim:
First: Was the driver of the car in which plaintiffs were riding contributorily negligent as a matter of law in view of the facts stated above?
This question must be answered in the affirmative. It is established in this state that if the physical facts shown by undisputed evidence raise the inevitable inference that a person approaching a railroad crossing did not look or listen, or that having looked or listened, he endeavored to cross immediately before a rapidly approaching train which is plainly open to view, he is, as a matter of law, guilty of contributory negligence. (Koster v. Southern P. Co., 207 Cal. 753, 761 et seq., 279 P. 788; Heroux v. Atchison, T. & S. F. Ry. Co., 28 Cal.App.2d 401, 405, 82 P.2d 620; Guyer v. Pacific Electric Ry. Co., 24 Cal.App.2d 499, 502, 75 P.2d 550; Jones v. Southern P. Co., 34 Cal.App. 629, 631, 168 P. 586.)
In Koster v. Southern Pacific Company, supra, a guarded crossing case where the flagman was absent from his post, the deceased had a view of the tracks for 21 feet, 6 inches. The accident occurred at Keyes Street in the city of San Jose. The deceased was driving an automobile which collided with a passenger train consisting of a locomotive, three diners, two passenger coaches and three baggage cars. The plaintiffs claimed that the view of the approach of the train was obstructed by a flagman’s shanty, 6 ¼ by 6 ¼ feet, 8 feet from the tracks, and a boxcar 36 feet, 10 inches long, 9 feet wide, standing near the flagman’s shanty. Our Supreme Court said with respect to the plaintiff’s contention, 207 Cal. at page 758, 279 P. at page 790:
‘The overhang of a box car is 2 ½ feet. The distance from the flagman’s shanty to the sidetrack is 8 feet 3 ¾ inches. Said track is 4 feet 8 ½ inches in width. The distance from the westerly rail of the side track to the first rail of the main track is 8 feet, 6 inches. Eliminating the box car from the side track, a traveler would have an open space of approximately 21 feet, 6 inches in which to make observation for an approaching train. That a single box car, 36 feet 10 inches in length and 9 feet 7 inches in width, should have obstructed the view of an approaching train, consisting of a steam locomotive, three diners, two passenger coaches, and three baggage cars, throughout the entire open space of 21 feet 6 inches, seems improbable.’
Applying the foregoing rule to the facts of the present case it is evident from the undisputed physical facts that the driver of the car in which plaintiffs were riding had an unobstructed view of defendant’s train as it approached the crossing for at least 35 feet prior to the accident, and that since he was driving at only 5 miles per hour, he could have stopped his automobile within less than one foot at any time before reaching the point of the accident by an application of the brakes on the car. It is therefore evident that either he did not look or listen or, having looked, failed to heed the fore patent that either he did not look or cross immediately in front of it. In either event he was contributorily negligent as a matter of law.
Since plaintiffs concede that the driver’s negligence, if any, was imputable to each of the plaintiffs the trial court properly granted defendant’s motion for a nonsuit.
Crawford v. Southern Pacific Company, 3 Cal.2d 427, 45 P.2d 183; Gregg v. Western Pacific Railway Company, 193 Cal. 212, 223 P. 553, are each factually distinguishable from the present case for the reason that in each case the driver’s view of the tracks was completely obstructed. Therefore they are inapplicable to the facts in the instant case.
Second: Since the driver of the automobile in which plaintiffs were riding was a minor nineteen years of age, did the trial court refuse to submit the question of his contributory negligence to the jury?
This question must be answered in the negative. The rule is established in California that where the capacity and intelligence of a child are not controverted, the court may determine, as a matter of law, whether the particular act is such as would be performed by one of his age, capacity and intelligence, and whether such act or failure to act constitutes contributory negligence. (Raggio v. Mallory, 10 Cal.2d 723, 727, 76 P.2d 660; Bolar v. Maxwell Hardware Co., 205 Cal. 396, 398 et seq., 271 P. 97, 60 A.L.R. 429; Whalen v. Streshley, 205 Cal. 78 et seq., 269 P. 928, 60 A.L.R. 445; Studer v. Southern Pacific Co., 121 Cal. 400, 404 et seq., 53 P. 942, 66 Am.St.Rep. 39; Mathews v. City of Albany, 36 Cal.App.2d 147, 148 et seq., 97 P.2d 266, 98 P.2d 1025.)
In the present case, Zearl Draper, the driver of the automobile, was nineteen years of age, and from all the evidence in the record appeared to be possessed of normal average intelligence and mental capacity. The trial court was therefore authorized to determine whether as a matter of law he was contributorily negligent in his conduct.
Since the record is free from error the judgment is affirmed.
MOORE, P. J., and WILSON, J., concur in the judgment.