Gibson v. Southern Pac. Co.

• Decision Date: 30 November 1955
• Citation: 290 P.2d 347,137 Cal.App.2d 337
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 A.L.R.2d 1205 Woody GIBSON, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 16295.

Page 347

290 P.2d 347

137 Cal.App.2d 337, 63 A.L.R.2d 1205

Woody GIBSON, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 16295.

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

Nov. 30, 1955.

Hearing Denied Jan. 25, 1956.

Fitz-Gerald Ames, San Francisco, for appellant.

R. Mitchell S. Boyd, Dunne, Dunne & Phelps, San Francisco, for respondent.

BRAY, Justice.

Action for damages for personal injuries sustained by plaintiff when struck by defendant's train. Motions for nonsuit and directed verdict were denied. The jury awarded plaintiff $75,000. Defendant moved for judgment notwithstanding the verdict and for a new trial. The court granted the former and denied the latter. Plaintiff appeals from the judgment notwithstanding the verdict.

Questions Presented.

1. (Raised for the first time on petition for rehearing.) (a) May a motion for directed verdict be made in chambers? (b) May the record on appeal be augmented by the certificates of the trial judge and courtroom clerk? (c) May a motion for directed verdict be made after argument has begun?

2. Was plaintiff contributorily negligent in assuming that all portions of the railroad platform were safe from overhang of passing trains?

3. Should evidence of suction power of the train have been admitted?

4. Was the court inconsistent in denying defendant's motion for new trial but granting its motion for judgment notwithstanding the verdict?

Facts.

Except as to just when the train's whistle was blown there appears little, if any, conflict in the evidence. Westerly, opposite Bay Meadows race track, defendant's railway tracks run north and south. On the west side of the west rail and distant 1 foot 9 inches therefrom defendant maintains an asphalt pathway or platform ¹ 8 feet wide, about at the level of the ties except at the Hillsdale station and Bay Meadows crossing platforms, where the asphalt is level with the tracks. This platform connected the much wider platform at the Hillsdale station with that at the Bay Meadows crossing. It was used both for walking between those platforms, and for boarding trains which stopped there on occasion to pick up race track patrons. The engine which struck plaintiff had an overhang which extended 1 foot 2 1/2 inches over the platform. The edge of the platform was 1 foot 9 inches from the nearest rail. The platform extends southerly from the Bay Meadows crossing (an infrequently used commuter stop) some 1,200 feet to the Hillsdale station. The tracks here and for a considerable distance southerly are straight. The platform is used by passengers and other pedestrians. This fact was well known to defendant. (Defendant concedes it owed a duty of due care to persons using the platform.) Near the station for a distance of 380 feet and near the crossing for a distance of 230 feet a white line extends along the platform sufficiently far from the rails to clear the engine's overhang. The railroad's maintenance official testified that such lines are painted on some of the 'passenger loading platforms to indicate the extremities of the loading zones * * *' In the intervening distance of approximately 600 feet there is no white line. Near sundown, with the weather clear and light, a slight breeze blowing about 5:50 p. m., plaintiff had walked across the crossing intending to go to Bay Meadows track. As he got to the gate of the track, the crowd started coming out. He noticed a train standing to the north. He assumed it was headed north. Assuming that the races were over, he retraced his steps to the west side of the tracks. While on the crossing he seemed to hear a couple of train whistles. He made no assumption as to their source. He walked south on the platform. He heard a train whistle, probably a little deeper in tone than the whistle or whistles he heard at the crossing. (This was 10 to 15 seconds before he was struck.) He continued walking forward and 'took probably a half step to the right' (away from the track). He heard no sound of grinding such as would be caused by the application of locomotive brakes. The half step to the right placed his left foot about 22 inches away from the track edge of the asphalt. He has a faint recollection of being 'spun,' feeling heat in his face and seeing a wheel of the engine. The next thing he remembered he was talking to a San Mateo policeman after the accident. He was then lying to the west of the platform at a point about half way between the crossing and the station. This was plaintiff's first time on the platform. He did not know that a locomotive would overhang the platform. Plaintiff suffered serious injuries to his shoulder, arm, elbow and his leg was 'mashed.'

The engineer died prior to trial so his story is unknown. The fireman, whose view was obstructed by the engine for the last 300 feet before the impact, at that point observed a group of people walking southerly along the platform, their backs towards the train. He could not tell how close they were to the edge. People 'too often' walk alongside the track there, fairly close. The usual speed at this point is 50 miles per hour. No stop at either Hillsdale station or Bay Meadows crossing was intended. Immediately north of the crossing there is a whistle post. Admittedly the whistle was blown there. There was evidence that the whistle was not sounded after the engine reached the crossing. One Harland, walking north on the platform, passed plaintiff walking south. He heard a whistle, turned around and started walking south. At that time the train was about 600 yards away. When he was about 10 to 20 feet behind plaintiff he heard the whistle again. The train was then possibly 300 yards away. He did not have too much of an idea on that. Harland turned over to the right and stopped. When the train passed him he saw some part of the front part of the engine strike plaintiff. Plaintiff was then about 2 1/2 feet from the edge of the platform nearest the rail. It looked to Harland as though plaintiff, who was walking straight, was in the clear. Harland had the impression that plaintiff was sucked into the train. Harland then stated that the whistle was going continuously until the time of the accident.

A railway 'red cap' walking on the platform saw plaintiff about 350 feet ahead of him. Plaintiff was walking close to the track edge of the asphalt. The whistle was blowing continuously when it passed the witness. The train hit plaintiff and spun him to the right.

Defendant's maintenance official testified that prior to May, 1946, there had been a gravel path which was 3 feet 6 inches in from the point where the track edge of the asphalt now is. The old path was completely clear of the engine overhang.

1. Motion for Directed Verdict.

We granted a rehearing in this case because the record failed to show that a motion for directed verdict had been made, such motion being a prerequisite to a later motion for judgment notwithstanding the verdict. Code Civil Procedure § 629; In re Estate of Caldwell, 216 Cal. 694, 697, 16 P.2d 139. Defendant moved, and we granted permission, to augment the record to show that such motion was made. Certificates of the trial judge and courtroom clerk were filed. These show that after both sides had rested their case, and at the opening of court at the end of a recess during defendant's argument, defendant's counsel approached the bench and stated that he desired to make a motion outside the presence of the jury. The judge, because 'there were no available facilities for the jurors except for the courtroom,' directed counsel for both parties, the clerk and the reporter, to proceed to the judge's chambers adjoining the courtroom so that the motion could be heard and argued outside the hearing of the jurors. In the presence of the persons above mentioned and without any objection by plaintiff, defendant moved for a directed verdict. The motion was argued by counsel for both parties. The motion was submitted. The court outside of the hearing of the jury made its order denying the motion and the clerk entered such order in the minutes. The court and the other participants then proceeded to the courtroom where the jury was seated and defense counsel then continued with his argument to the jury. On the motion for judgment notwithstanding the verdict no contention was made by plaintiff of any irregularity in the making of the motion for directed verdict nor was it contended that the court had no power to grant such motion.

(a) Motion Made in Chambers.

Plaintiff contends that a judge has no jurisdiction to hear or determine motions in chambers other than those expressly included in section 166, Code of Civil Procedure. Assuming that ordinarily a motion for directed verdict cannot be heard in chambers, the hearing of such a motion there would be merely a nonprejudicial irregularity and not jurisdictional. See Hamblin v. Superior Court, 195 Cal. 364, 233 P. 337, 43 A.L.R. 1509, where the court tried a default action for divorce in Long Beach, pursuant to a statute held to be unconstitutional. The court held that 'proof which the law requires to be 'taken before the court' was in fact taken before the judge', 195 Cal. at page 371, 233 P. at page 340, that the 'result is that the evidence so heard by it was in effect heard by the judge 'in chambers", 195 Cal. at page 373, 233 P. at page 341, and that this was a mere irregularity, was not jurisdictional and did not render the judgment entered thereon void. See also Holland v. Superior Court, 121 Cal.App. 523, 9 P.2d 531, where the trial judge wrote out in the county clerk's office an order denying a motion for new trial and modified the findings and judgment. This order was lost after entry into the minutes. One of the grounds upon which the petitioner sought to prohibit any further proceedings under the order was that the judge had no jurisdiction to sign the order at the clerk's office as...