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

• Decision Date: 21 June 1957
• Citation: 313 P.2d 557,64 A.L.R.2d 1283,48 Cal.2d 655
• Court: California Supreme Court
• Parties: , 64 A.L.R.2d 1283 John S. DAGGETT, Plaintiff and Respondent, Paul R. Smith and Olga Smith, Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, G. H. Benton and Irwin M. Pike, Defendants, Appellants, and Respondents. L. A. 24392.

Page 557

313 P.2d 557

48 Cal.2d 655, 64 A.L.R.2d 1283

John S. DAGGETT, Plaintiff and Respondent Paul R. Smith and Olga Smith, Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, G. H. Benton and Irwin M. Pike, Defendants, Appellants, and Respondents.

L. A. 24392.

Supreme Court of California, In Bank.

June 21, 1957.

Rehearing Denied July 16, 1957.

Melvin M. Belli, San Francisco, William F. Reed, San Diego, and Edwin M. Rosendhl, Los Angeles, for plaintiffs and appellants.

Robert W. Walker and Richard K. Knowlton, Los Angeles, and Luce, Forward, Kunzel & Scripps, San Diego, for defendants and appellants.

Melvin M. Belli, San Francisco, William F. Reed, San Diego, Edwin M. Rosendahl, Los Angeles, Fitz-Gerald Ames, Sr., Lou Ashe, San Francisco, James Boccarda, San Jose, David Casey, San Diego, Ben C. Cohen, Beverly Hills, Robert Ford, Los Angeles, Downey A. Grosenbaugh, Hollywood, Holt, Macomber & Graham, San Diego, Leland, v. Lazarus, San Francisco, Raoul Magana, Los Angeles, Jack G. McBride, San Francisco, John W. McInnis, San Diego, and Herbert Resner and Ryan & Ryan, San Francisco, for respondent.

Peter C. Morris, San Francisco, Martin B. Berman, and William P. Camusi, Los Angeles, John Carter, S. M. Dana, Hollywood, Robert F. Diekman, and John M. Ennis, Los Angeles, Leo Fried, San Francisco, Myron L.Garon, Los Angeles, Lois Garon, Ned Good, Los Angeles, Jerry Giesler and Irving H. Green, Beverly Hills, Vernon Humber, Hirson & Horn and John R. Inderrenden, Los Angeles, Danny R. Jones, Compton, Elmer Low, Pasadena, Paul Madden, San Francisco, Mahedy & Schall, San Diego, Munnell, Shelander & Mullendore, Los Angeles, Denver C. Peckinpah Fresno, Samuel B. Picone, Beverly Hills, Pollock & Pollock, Los Angeles, Theodore W. Rosenak, Samuel A. Rosenthal, Los Angeles, Harriet Ross, San Francisco, Edgar Simon and Eugene E. Sax, Los Angeles, Edward Spraker, Fresno, John Moran, Los Angeles, and Jesse E. Nichols, Oakland, amici curiae on behalf of respondent.

CARTER, Justice.

Defendants, The Atchison, Topeka and Santa Fe Railway Company, G. H. Benton (motorman), and Irwin M. Pike (conductor) appeal from a judgment in favor of John S. Daggett for the loss of his two minor children in an action arising out of a collision between one of defendant's passenger trains and an automobile driven by Paula Smith Daggett, who died in the same accident, at a railway crossing in Solana Beach. Olga Smith and Paul R. Smith, the parents of Paula Smith Daggett (wife of John S. Daggett) were also plaintiffs in the action but as to them the jury found in favor of defendant railway company.

Neither the negligence of defendants, nor the contributory negligence of Paula Smith Daggett, are issues on this appeal. The only two assignments of error with respect to the evidence relate to the examination of defendant railway's employees called under section 2055 of the Code of Civil Procedure. The facts therefore will be set forth as briefly as possible but with particular emphasis on the disputed evidence.

The accident occurred at approximately 11:18 a.m. on June 25, 1954. It was a clear day. Mrs. Daggett, who was 24 years of age and eight months pregnant, was driving in a westerly direction on Plaza Street, Solana Beach, accompanied by her two minor children, aged 3 years and 10 months, respectively, Defendant's train, which was traveling in a southerly direction at a speed of between 86 and 90 miles an hour crossed the intersection of Plaza Street on its railroad tracks at the same time as Mrs. Dagett's automobile which was estimated to be traveling at a speed of from 10 to 15 miles per hour. Mrs. Daggett and the two minor children were killed in the accident. On the north side of Plaza Street was a lumber company building about 75 feet from the crossing; on the same side of Plaza Street was a railroad siding on which stood a freight car about 100 feet from the crossing. Both the building and the freight car were on Mrs. Daggett's right (the direction from which the train approached the crossing) as she drove westerly on Plaza Street toward the railroad crossing. On the northeast corner (on Mrs. Daggett's right) of the intersection of the tracks and Plaza Street was an automatic wigwag signal located 12 feet 9 inches above the ground; on the southwest corner of the crossing was a standard crossarm. Running parallel to, and a very short distance from, defendant's railroad tracks is the Pacific Coast Highway which intersects Plaza Street after it crosses the tracts. At this intersection there is a traffic light for vehicular traffic. ¹ Ringing circuits for the operation of the wigwag signal were set off by a southbound train at a point 3,023 feet north of Plaza Street where it intersects with the tracks. In view of the speed at which defendant's train was approaching the intersection, this would result in the operation of the automatic wigwag signal for approximately 22 seconds.

Glenn H. Benton, a defendant, and the motorman who was operating the train at the time of the accident, was the first witness, called by plaintiffs under section 2055 of the Code of Civil Procedure. ² Mr. Benton testified that the train which he was operating at the time of the accident was a four-unit Diesel with ten passenger cars; that it was capable of a speed of 100 miles an hour; that at the time of the accident he had the train in throttle 'position 8' (the highest speed position) and that the train was going from 85 to 90 miles an hour; that the railroad speed limit for that crossing was 90 miles an hour and that this was considered a safe speed. ³ The witness also testified that on the day in question the train was 15 minutes late and that he was trying to make up time. Mr. Benton testified that the area involved was part of the fourth district and that the speed limit for the district was 90 miles an hour. The witness testified that the speed 'is 90 now on the first, second, and fourth districts.' (Emphasis added.) Over objection by defense counsel the following occurred: 'Q. (By plaintiffs' counsel): Well, Mr. Benton, the restriction now is 50 miles an hour, isn't it?' Plaintiffs' counsel, in answer to the court's question concerning the district to which he was referring, replied: 'He is referring to the fourth. He says the restriction in the fourth district now is 90 miles an hour. We are prepared to show that the restriction in this distrcit at this crossing now, rather than being 90 miles an hour, is 50 miles an hour.' In response to defense counsel's request to take 'this matter' up out of the presence of the jury, the court ruled that 'He has a right to say what he expects to prove or what he expects to get this witness to testify to. It is cross-examination, a legitimate statement.' Over objection by defense counsel, the following took place: 'Q. (Plaintiffs' counsel): Mr. Benton, you say that the speeds in these areas then and now are 90 miles an hour?' After objection and a holding that the question was a compound one, the witness answered a simplified question that the speed 'now' at the 'plaza area' was 50 miles an hour.

The second witness called by plaintiffs was William Price, signal engineer for the defendant railway company. Mr Price, who qualified as an expert witness, and who testified under section 2055 of the Code of Civil Procedure said that he was 'absolutely sure' that the type of signal in use at the Plaza crossing at the time of the accident was 'the safest type of singal.' Counsel for plaintiffs, over objection, questioned the witness and brought out that since the accident the California Public Utilities Commission had requested defendant railway company to change the single wigwag signal to two 'flashing light signals' located 8 feet above the ground level. Over objection, the court permitted the jury to view the scene of the accident at a time when a train crossed the intersection. At this time, of course, the speed limit had been reduced and the new signals installed. However, photographs of the crossing with the new signals installed had been theretofore admitted in evidence without objection by defense counsel. ⁴

Defendants contend that the court committed prejudicial error in admitting evidence of changes made subsequent to the time of the accident. Plaintiffs argue that the evidence was not admitted for the purpose of showing changed conditions but to impeach the witnesses called by them under section 2055. It is also argued by defendants that evidence of changed conditions may not be used to impeach a witness called under section 2055, and that the error was magnified by plaintiffs' counsel during argument to the jury.

It is the general rule in this state that evidence of precautions taken and repairs made after the happening of the accident is not admissible to show a negligent condition at the time of the accident. Helling v. Schindler, 145 Cal. 303, 78 P. 710; Church v. Headrick & Brown, 101 Cal.App.2d 396, 413, 225 P.2d 558. The reason for the rule was well stated in Sappenfield v. Main St. & A. P. R. Co., 91 Cal. 48, 62, 27 P. 590, 593: 'It would be unjust to hold that, because the employer seeks by all the aid he gets from the light of experience to make the implement free from danger, he is therefore to be charged with neglignece in the use of all prior appliances, even though they were adopted with the best light then under his control. * * * He may have exercised all the care which the law requires, and yet in the light of a new experience, after an unexpected accident has occurred, he may adopt additional safeguards. To hold that the adoption of such new appliances which experience has demonstrated are more efficient than those previously in use, or which invention has developed from observing the defects in those originally adopted, shall be an admission that he was negligent prior thereto would prevent the very conduct in employers which they...