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

• Decision Date: 28 August 1956
• Docket Number: Nos. 16778,16779,s. 16778
• Citation: 300 P.2d 910,144 Cal.App.2d 224
• Court: California Court of Appeals Court of Appeals
• Parties: Dewey DESHOTEL, Jr., Plaintiff and Respondent, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Defendants, The Atchison, Topeka & Santa Fe Railway Company, a corporation, and William M. Floyd, Defendants and Appellants, Dewey DESHOTEL, Jr., Plaintiff and Respondent, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Defendants, Yellow Cab Company, a corporation, and Archie Hughes, Defendants and Appellants.

Page 910

300 P.2d 910

144 Cal.App.2d 224

Dewey DESHOTEL, Jr., Plaintiff and Respondent, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Defendants, The Atchison, Topeka & Santa Fe Railway Company, a corporation, and William M. Floyd, Defendants and Appellants, Dewey DESHOTEL, Jr., Plaintiff and Respondent, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Defendants, Yellow Cab Company, a corporation, and Archie Hughes, Defendants and Appellants.

Nos. 16778, 16779.

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

Aug. 28, 1956.

As Corrected on Denial of Rehearing Sept. 27, 1956.

Hearing Denied Oct. 24, 1956.

Robert W. Walker, William F. Brooks, William J. Hayes, Hardin, Fletcher, Cook & Hayes, Oakland, Cyril Viadro, San Francisco, of counsel, for appellants A. T. & S. F. Ry. Co. and Wm. M. Floyd.

Ricksen, Freeman & Johnson, Marshall Ricksen, Oakland, Lewis P. May, Oakland, of counsel, for appellants Yellow Cab Co. and Archie Hughes.

James A. Meyers, Oakland, D. W. Brobst, Oakland, for respondent.

BRAY, Justice.

The jury rendered a verdict in favor of plaintiff against all defendants for $365,000. ¹ On defendants' motion for new trial, the trial court, as a condition for denial thereof, reduced the amount to $290,000. Plaintiff accepted this reduction. All defendants appeal from the judgment entered thereon. ²

Questions Presented.

1. Santa Fe appeal: (a) Admission of photographs of other crossings. (b) Admission

of number of accidents at these other crossings. (c) Excessive damages.

2. Yellow Cab appeal: Was the negligence of the Santa Fe the sole proximate cause of the accident?

1. Santa Fe Appeal.

(a) Photographs.

While the Santa Fe contended at the trial that the negligence of the cab driver was the sole proximate cause of the accident, it concedes that the evidence supports the verdict as to liability. It contends, however, the case on this issue was very close and hence any error would have been prejudicial.

On the rainy morning of January 11, 1952, a Santa Fe train, driven by William Floyd, was proceeding northwesterly through the Berkeley residential area toward an eastern destination. The Santa Fe right of way, in this vicinity, runs northwesterly and southeasterly, crossing east-west streets at an angle a little less than perpendicular. At the intersection of Parker Street, which runs east and west, and Acton Street, which runs north and south, the Santa Fe right of way crosses the intersection slightly to the east of its center, and at an acute angle to Acton Street. As the train approached the Parker-Acton intersection, the Yellow Cab, of which Archie Hughes was the driver, and plaintiff Deshotel was the passenger, was going east on Parker Street, approaching the intersection. At about 9:30 a. m., the cab and the train collided at the intersection, resulting in serious injuries to Deshotel. There was evidence that the train did not ring a bell or sound a whistle as it approached the crossing, and that it was proceeding at a speed in excess of the maximum speed permitted by the Santa Fe rules. ³ The crossing was protected by an advance warning sign, by cross-arms and by a white sign painted on the pavement, but no wigwag. Defendant Yellow Cab, in an attempt to show that Santa Fe did not use ordinary care to protect the Parker Street crossing and maintained a trap there, introduced in evidence (over Santa Fe's objection) photographs of eight crossings adjacent to Parker Street (five to the south, three to the north), as well as of the Parker Street crossing. ⁴ Seven of the eight other crossings were each protected by a wigwag.

Defendants contend that the admission of the photographs of the other crossings was error because there was no showing of similarity with the Parker Street crossing, particularly as to visibility of the railroad from the intersecting streets. The accident occurred at the crossing in the intersection of Acton Street and Parker. The other eight crossings were not at street intersections but in the middle of the block. From the aerial photographs of the area (including the eight other crossings) admitted without objection, this appears to be the main difference from the Parker Street crossing. The Berkeley Director of Planning who was the only one who testified on the subject testified that the neighborhood of the nine crossings was of the same general character, that is, about the same size houses, kind of landscape treatment, character of streets, trees, etc., but that the crossings were different as to closeness of the houses to the tracks. He could not say concerning the blocking or not blocking of view or visibility at the various crossings. He did say that 'in terms of sight distance' the crossing areas were different. Counsel stipulated that the trial judge could go to the scene and make a preliminary determination as to the similarity of the crossings. This the trial judge did and reported that the crossings were 'essentially similar.' As said in Jensen v. Southern Pacific Co., 129 Cal.App.2d 67, 74, 276 P.2d 703, 708: 'Identical conditions will rarely be found. Substantial similarity is normally sufficient. Determination of relevancy, including similarity of conditions in such a case, is primarily the function of the trial judge.' Defendants have pointed out no difference in visibility between the crossings other than the fact that at the Parker Street crossing Acton Street had to be crossed by the taxi to meet the right of way, whereas the other crossings involved only one street and the right of way. Looking at all nine photographs and the aerial photograph, the visibility at all crossings seems to be substantially the same. Moreover, the court instructed the jury that it would have to find the crossings substantially similar before it could consider the fact of wigwags at the other crossings and not at Parker Street as a factor in determining whether the Santa Fe maintained the degree of care required of it. This instruction was more favorable to defendants than they were entitled to as determination of similarity 'is primarily the function of the trial judge.' Jensen v. Southern Pacific Co., supra, 129 Cal.App.2d at page 74, 276 P.2d at page 708.

Defendants contend that the taxi driver, Hughes, was familiar with the Parker Street crossing and hence it is doubtful if the Santa Fe owed him as much warning as it owed others who were not familiar with the crossing. Hughes denied having gone over the crossing before although admitting that he had crossed the same tracks in other places many times, including approaching the tracks nearby twice that day. These matters merely went to the weight of the evidence, not to the admissibility of the photographs. We see no error in the admission of the photographs.

'(b) Number of Accidents.

Over objection and on cross examination by Yellow Cab, Gibson, an engineer of the Public Utilities Commission, testified as to the number of accidents occurring at the other crossings over the preceding 25 years, approximately. First contending that such evidence was inadmissible because of dissimiarity of conditions at Parker Street to those at the other crossings (this contention we have already discussed above) defendants contend that the evidence was inadmissible because there was no similarity shown between those accidents and the one here. The evidence in question was adduced under the following circumstances: Gibson was called by the Santa Fe in rebuttal to testify to a survey of the Santa Fe crossings made in 1948 by the Public Utilities Commission for the purpose of making recommendations for safety precautions at railroad crossings. He testified that the commission had made various recommendations concerning wigwags at the other eight crossings but had not recommended one at the Parker Street crossing; that the history of accidents at all the crossings was considered in making the recommendations. Santa Fe counsel asked him the number of accidents at the Parker Street crossing since 1927. There were five. Then counsel for Yellow Cab asked if the records showed the number of accidents during the same period at the other crossings, where there were wigwags. Santa Fe objected 'unless there is a foundation laid.' The court overruled the objection, stating that the foundation had been laid by the testimony that the accident history had been considered by the commission in determining whether or not wigwags should be installed. The testimony showed either no accidents or less accidents at the wigwag crossings than at the Parker Street crossing. Santa Fe contends that Gibson's testimony was to show that the standards at the various crossings were Public Utilities Commission and not Santa Fe standards, and that the number of accidents was immaterial. If this were true, there was no reason for Santa Fe to bring out the number of accidents at Parker Street. By so doing it opened the door for a showing of the number at the other crossings.

Santa Fe contends that it was forced to ask Gibson concerning the number...