Carpenter v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 29 January 1952
• Court: California Court of Appeals Court of Appeals
• Parties: CARPENTER v. ATCHISON, T. & S. F. RY. CO. Civ. 4423.

Page 5

240 P.2d 5

109 Cal.App.2d 18

CARPENTER v. ATCHISON, T. & S. F. RY. CO.

Civ. 4423.

District Court of Appeal, Fourth District, California.

Jan. 29, 1952.

Rehearing Denied Feb. 26, 1952.

C. Arthur Nisson, Jr., Santa Ana, for appellant.

Robert W. Walker, Louis M. Welsh, Los Angeles, Henry M. Moffat, Palo Alto, and Charles D. Swanner, Santa Ana, for respondent.

MUSSELL, Justice.

Plaintiff brought this action, under the provisions of the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51, for the recovery of damages for the wrongful death of her husband. The decedent was a track supervisor employed by defendant and was killed while operating a railway motor car at a crossing near Tustin in Orange county. The action was tried before a jury. Defendant's motions for a nonsuit and a directed verdict were denied and, after failing to arrive at a verdict, the jury was dismissed. Defendant then moved for judgment under section 630 of the Code of Civil Procedure and its motion was granted. From the judgment entered following the granting of the motion, plaintiff appeals.

At the time of the accident, decedent Wayne Carpenter was operating a railroad motor car and was crossing a surfaced roadway known as Red Hill Avenue. The motor car was mounted on four wheels, propelled by a single cylinder engine, weighed approximately 350 pounds, and was belt driven. It was not equipped with any bell, whistle or other device to give warning of its approach to a highway crossing and was insulated to prevent the wheels from setting up contact with the rails and thus activating the wig-wag signals at public crossings. As Carpenter approached Red Hill Avenue, he slowed down but did not see a truck, which was approaching the crossing in a northeasterly direction on the avenue, in time to stop and avoid a collision. The truck and motor car collided and Carpenter received fatal injuries from which he died 36 hours later.

There were wig-wag signals at the crossing, white lines on the pavement indicating it, and a signpost placed to warn approaching traffic. However, the driver of a vehicle approaching the crossing from the south could not get a full view along the tracks in both directions until within 27 feet of the southern rail of the railroad track. There was testimony that the motor car was moving between 15 and 20 miles per hour immediately prior to the accident. The railroad wig-wag crossing signals were not in operation at the time of the accident, which occurred at about 12:50 P.M. on June 14, 1948.

Mr. Shaw, the driver of the truck, testified that he was going 35 to 40 miles per hour; that he looked straight ahead for the last 200 feet approaching the crossing; that he did not see the motor car until he got out of the truck to see what he had hit; that he then turned around and saw the car.

Eleven or twelve days prior to the accident, Carpenter went to a Dr. Miller, employed by the Santa Fe Hospital Association, and had a small foreign object removed from his left eye. Carpenter kept the eye covered with a patch until the forenoon of June 14th, when the patch was removed by Dr. Miller. He found that the left eye was then nearly healed but that it did not react to light as actively as did the right eye.

Evidence was introduced that Carpenter, as track supervisor, was at the time of the accident covering a greater trackage than was commonly assigned to such employees; that the length of track usually covered by him was 52 miles and that on the day of the accident, it was approximately 100 miles.

The defendant's rules and regulations governing the operation of motor cars provided that (1) Railway motor cars must yield the right of way to highway traffic at grade crossings; (2) Motor cars must be run slowly over railroad crossings at a speed of not to exceed 10 miles per hour; and (3) Operators of motor cars must flag over crossings where traffic is dense. Carpenter had been furnished with a copy of these rules and had passed a written examination based upon them.

Appellant argues that the conduct of the defendant as a whole should be examined to determine its negligence and that there are several elements from which negligence might be inferred: (1) The additional duties assigned Carpenter; (2) The physical handicap due to the decedent's eye injury; (3) The pressure of defendant railroad's work on the employee; (4) The failure of the defendant railroad to provide a safe place to work in that no warning devices were provided Carpenter who was required to travel great distances by railway motor car in relatively short periods of time; (5) Representations made to the general public by custom that when no wig-wag crossing warning signals are operating, the railroad track at an intersection is clear and it is safe for the motoring public to cross such railroad track.

The only question to be here determined is whether there was in the record any evidence of negligence which should have been submitted to a jury. Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 976, 217 P.2d 45. In determining this question the federal statutes and decisions are controlling. As was said in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 1026-1027, 93 L.Ed. 1282, 11 A.L.R.2d 252:

'Section 1 of the Federal Employers' Liability Act provides:

"Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,...