Coe v. Southern Pac. Co.

• Decision Date: 15 May 1962
• Citation: 21 Cal.Rptr. 731,203 Cal.App.2d 509
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret COE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, and James H. Ross, Defendants and Respondents. Civ. 19064.

Page 731

21 Cal.Rptr. 731

203 Cal.App.2d 509

Margaret COE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, and James H. Ross, Defendants and Respondents.

Civ. 19064.

District Court of Appeal, First District, Division 1, California.

May 15, 1962.

Rehearing Denied Jane 11, 1962.

Peckinpah & Hamlin, Denver C. Peckinpah, Fresno, William B. Boone, San Bruno, for appellant.

R. Mitchell S. Boyd, G. Blandin Colburn, Jr., Dunne, Dunne & Phelps, San Francisco, for respondents.

BRAY, Presiding Justice.

Plaintiff appeals from a judgment after jury verdict in favor of defendants, and purports to appeal from the order denying new trial.

QUESTIONS PRESENTED.

1. Alleged error in instructions given:

(a) Presumption of use of due care by defendants;

(b) Section 575, subdivision (a), Vehicle Code (now § 22451, subd. (a));

(c) Failure to instruct on contributory negligence.

2. Other instructions.

3. Exclusion of statement of Mrs. Winther.

4. Cross-examination of highway patrol officer as to Fresno City Police report.

EVIDENCE.

Plaintiff was the passenger in an automobile which was struck at a railroad crossing by defendant Southern Pacific Company's switch engine, operated by defendant Ross. Her complaint contained two counts. The first alleged negligent operation of the engine; the second, negligent maintenance of the protective devices at the crossing.

Olive Avenue, Fresno, crosses defendant railroad's right of way on an angle. There are two sets of tracks there running generally north and south. Running parallel with and adjacent to the right of way on the west is highway 99. On the east side and parallel and adjacent to the right of way is Weber Avenue, a city street. Olive Avenue is wide enough for two lanes in each direction, although there are no lines on the pavement. At about 11:30 p. m. April 5, plaintiff was riding as a guest in an automobile owned and driven by Mrs. Winther. The car came along Olive Avenue traveling west. Protecting the crossing on the east side was a standard wigwag signal equipped with both a red light in the middle of a swinging disc and a clanging bell. Across the tracks at highway 99 there were flashing red highway traffic signals coordinated with the wigwag system. The signals start operating when either a northbound train reaches a point 1050 feet south of the crossing, or a southbound train reaches a point 940 feet north of the crossing.

About 9:30 p. m. plaintiff and Mrs. Winther went to a certain bar and restaurant; plaintiff testified that there she and Mrs. Winther had three alcoholic drinks. Plaintiff remembered getting into Mrs. Winther's car and passing a sandwich shop on Olive Avenue. Thereafter she remembered nothing that happened until after the accident.

Mrs. Winther admitted taking three or four alcoholic drinks at the same bar and restaurant. While about a block away from the crossing Mrs. Winther saw the wigwag signals operating. They had started to operate at least 15 minutes prior to the accident, and continued operating up to the time of the accident. The traffic lights at highway 99 were blinking in a manner which indicated to her the approach of a train. Two other cars in front of her in the far right hand lane stopped. She came to a stop behind the waiting cars; she then turned her car around the car directly in front of her and into the inside westbound lane, and proceeded on to the railroad tracks without stopping. The collision then occurred.

Mrs. Winther said that as she came up behind the two stopped cars she looked to her right (north) and could see a distance up the track of some 400 or 500 feet, but saw no train or engine approaching. About 350-400 feet to the north a billboard partially obstructed vision of the tracks. The tracks both north and south of the crossing are straight. As she pulled into the inside lane she looked to her left (south) and saw a stopped train with its headlight on, facing north. Apparently it was the habit of the engineers to so stop their trains. The protective devices are such that if, as here, the train is within the signal block the devices will operate whether the train is moving or not. This train she variously estimated was half a block, 150 or 400 feet from the crossing. When she drove upon the tracks she was looking straight ahead and did not see the switch engine until the instant it collided with her car. This switch engine was traveling without any cars, 'backwards,' that is, with its tender first, southerly on the westerly set of tracks, the set on the opposite side of the right of way from which the Winther car approached. It was traveling at about 15 miles per hour, with its headlight on the tender end lighted. The speed limit at the crossing is 20 miles per hour. There was testimony that both the engine's bell and whistle were sounding, although Mrs. Winther testified that she did not hear them.

As the engine approached the crossing and when it was about 300-400 feet from it the engineer saw the two cars at the intersection. When about 150 feet therefrom, the engineer saw a third car slowly moving up behind the other cars. It was moving 'pretty slow,' 'possibly five miles an hour.' He saw that the wigwag was operating. When about 75 to 100 feet from the intersection he saw the car pull around the other cars. He then started to give a succession of short whistle blasts. When the car began to cross the first set of tracks the engine was not more than 50 feet away, although still not in the crossing. The car was picking up speed to perhaps 10 to 12 miles per hour. As soon as he saw the car enter the easterly track he threw on the emergency brakes. The engineer made no attempt to decrease speed when he saw the Winther car pull around the other cars. He reached for the brake valve when he was sure the car was going to cross the tracks. The brakes took hold near the center of Olive Street just about the time of the impact. The engine struck the right rear of the car, and stopped 114 feet past the point of impact.

Company rules require that when there is danger caused by people on the track or approaching it, a series of short sounds of the whistle shall be given as an alarm. There was a conflict as to what whistles, if any, were given. The engineer and fireman testified that short blasts of the whistle started when the engine was still 50 feet from the crossing. The only whistle heard by the attendant at a nearby gas station was one just before the accident. A highway patrol officer in the near vicinity did not remember hearing any whistle, nor did Mrs. Winther. The engineer of the parked freight did not know whether the switch engine had or had not given the crossing whistle. Another witness knew that the engine had sounded its whistle but was unsure of the nature of the sound and the time when it occurred.

Plaintiff produced evidence that a gate type of signal was in the process of being erected at the intersection, apparently after lengthy negotiations between the city, the Public Utilities Commission and defendant. Its installation was in conjunction with an increase in the speed limit of trains at the intersection from 20 to 50 miles per hour. A traffic count in February, 1953, showed 6128 vehicles over this crossing, with 24 train movements west and 23 east daily. In the preceding five years there had been eight accidents with one fatality and four personal injuries. Defendants' evidence was that the devices were entirely adequate. Defendant had received complaints about the practice of stopping trains within the area which activated the warning devices.

The evidence of witnesses who talked to or otherwise came in contact with Mrs. Winther after the accident was that she did not appear to have been affected in any way by the drinks she had taken. In a statement allegedly given by Mrs. Winther the day after the accident, and which she testified that she did not remember giving, she stated that she did not stop at any time prior to the accident. Mrs. Winther testified that she did not know where plaintiff was looking as they approached the crossing as Mrs. Winther was not looking at plaintiff.

After the accident plaintiff was found unconscious on the floor of the car, remaining unconscious for three days. She was confused and disoriented for several weeks. She suffered a very severe crushing fracture of the right side of her face, and a general and diffused type of brain damage.

An expert testified that had the engineer commenced to apply his brakes when 98 feet away the Winther car would have gone an additional 27 feet to what it did, thereby getting out of the way of the engine. He also testified that had Mrs. Winther reacted at the time that she was next to the wigwag she could have stopped in time.

It is obvious that Mrs. Winther assumed that the freight train to her left was the cause of the signals operating. When she looked to her right from behind the stopped car she did not see the approaching engine, and she did not thereafter look again to her right when she entered upon the railroad tracks.

No claim is made that the evidence was not sufficient to support the verdict. Plaintiff's contention are that certain instructions were improper and that certain evidence was improperly excluded and admitted.

1. THE INSTRUCTIONS.

(a) Presumption of defendants' due care.

The court instructed that the operators of the train had the right to operate it along the right of way and over the crossing and that their only duty was to give the statutory signals and to exercise ordinary care in the circumstances. 'In the absence of a showing to the contrary, the law presumes that the operators of the train performed their statutory duties and used such care. This presumption is evidence for the defendant and it remains in the case until met or overcome by other evidence, if any.' (Emphasis added.)

Plaintiff contends that since defendant railroad's employees, the engineer and...