Bains v. Western Pacific R. Co.

• Decision Date: 22 March 1976
• Citation: 56 Cal.App.3d 902,128 Cal.Rptr. 778
• Court: California Court of Appeals Court of Appeals
• Parties: Kuldeep Kaur BAINS et al., Plaintiffs and Appellants, v. WESTERN PACIFIC RAILROAD COMPANY, a California Corporation, et al., Defendants and Respondents. Civ. 35526.

Page 778

128 Cal.Rptr. 778

56 Cal.App.3d 902

Kuldeep Kaur BAINS et al., Plaintiffs and Appellants, v. WESTERN PACIFIC RAILROAD COMPANY, a California Corporation, et al., Defendants and Respondents.

Civ. 35526.

Court of Appeal, First District, Division 2, California.

March 22, 1976.

Steel & Arostegui, Islip, Cooke & Guthrie, Phillip A. Cooke, Marysville, for appellants.

Bledsoe, Smith, Cathcart, Boyd & Eliot, San Francisco, for respondents.

KANE, Associate Justice.

In this wrongful death, railroad crossing case plaintiffs appeal from a judgment in favor of the defendants entered upon a jury verdict. Although several contentions are advanced, plaintiffs candidly concede that the primary and pivotal issue is the refusal of the trial court to submit the issue of alleged willful misconduct to the jury.

It is, of course, axiomatic that a party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory (4 Witkin, Cal.Procedure (2d ed.), Trial, § 192, p. 3012). It is also well established that in determining whether element (2) exists in a given case, the reviewing court must consider the evidence in the light most favorable to the party requesting the instruction.

It is now settled that 'Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.' (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1012, 112 Cal.Rptr. 695, 698).

Our task therefore is to determine whether there is substantial evidence in the record to support each of the foregoing elements (Morgan v. Southern Pacific Trans. Co., supra at p. 1014, 112 Cal.Rptr. 695; Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33).

(1) Actual or Constructive Knowledge of the Peril to be Apprehended

Although their argument under this heading is rather imprecise, appellants seem to contend that the 'peril to be apprehended' is the potentiality of a collision between a vehicle and a train at an ungated crossing. To constitute willful misconduct, however, more must be shown than the bare possibility of injury. Otherwise, there would be little distinction between willful misconduct and negligence, since negligence is predicated upon a breach of duty which is imposed when there exists a foreseeable, or potential, risk of harm. "'Wilful misconduct means' something different from and more than negligence, however gross. . . ." (Porter v. Hofman (1938) 12 Cal.2d 445, 448, 85 P.2d 447, 448; see also Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869, 118 P.2d 465; Lovett v. Hitchcock (1961) 192 Cal.App.2d 806, 813, 14 Cal.Rptr. 117; Williams v. Carr (1968) 68 Cal.2d 579, 583--584, 68 Cal.Rptr. 305, 440 P.2d 505).

Almost every venture involves some risks, especially in the field of transportation. In the present case, appellants established that crossing accidents are reduced by 90 percent when automatic gates are installed at railroad crossings. All this demonstrates is that there is still the potentiality of a collision between a vehicle and a train even at gated crossings. Conceivably, if railroad bridges were constructed over all crossings, collisions would be totally eliminated. If such bridges were not constructed, under appellants' reasoning, a factual issue of willful misconduct would arise. The law does not impose such a burdensome duty, let alone label such inaction as willful or wanton misconduct. While it can always be contended that a particular accident should have been anticipated, it is only in situations where a defendant's conduct amounts to wantonness as opposed to a mere failure to perform a duty, that he will be held liable for willful misconduct (Porter v. Hofman, supra, 12 Cal.2d at pp. 448--449, 85 P.2d 447).

The evidence in this case, viewed most favorably to the plaintiffs, fails to establish that Western Pacific's railroad crossing at Plumas Arboga Road constituted an unusual peril, and further fails to establish that the train crew's conduct amounted to willful or wanton misconduct.

Thus, the evidence established without contradiction that the Plumas Arboga Road crossing itself was clearly visible to a vehicle approaching it from the same direction as decedent; that it was a crossing in a rural area which experienced comparatively little traffic, averaging 187 cars and 16 trains per day. In the 26 years prior to the accident in question only one other accident had occurred at this crossing. On that prior occasion an automobile struck the Second engine unit, an accident which can only be considered due to obvious driver inattention.

Concerning the conduct of the train crew, plaintiffs established that the train was traveling between 64 and 76 miles per hour, a speed obviously in excess of the 50-mile per hour limit imposed by Western Pacific. The brakeman sighted decedent's car when the trian was one quarter of a mile and the car 300--400 feet from the crossing, but did not set or apply the emergency brakes until the collision appeared 'imminent,' at which time the engine was approximately 160--190 feet from the crossing. The brakeman sounded the regular crossing whistle 10--15 seconds before the collision.

The above facts demonstrate only that defendants may have been negligent in the operation of their train and crossing. With regard to Western Pacific's procedure of not applying the brakes unless a collision appeared imminent, as opposed to unavoidable, this again might be a basis for negligence, but not willful...