Givens v. Southern Pac. Co.
Citation | 14 Cal.Rptr. 736,194 Cal.App.2d 39 |
Court | California Court of Appeals |
Decision Date | 20 July 1961 |
Parties | Albert S. GIVENS, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Victor H. Grace, First Doe to Fifth Doe Inclusive, Defendants, Southern Pacific Company, a corporation, Respondent. Civ. 24760. |
J. Paul Madsen, Los Angeles, for appellant.
E. D. Yeomans, William E. Still, John H. Gordon, and John J. Corrigan, Los Angeles, for respondent.
Appeal by plaintiff from an adverse judgment in an action for damages for personal injuries sustained when the motorcycle he was riding collided with a switch engine at a grade crossing.
The complaint is in two counts: the first alleges negligence; the second, wanton misconduct. At the close of plaintiff's opening argument, the court granted defendant's motion for a directed verdict as to count II.
The first point made is that it was error to grant the motion as to count II. Count II alleges 'defendant did wantonly and recklessly run and stop said engine over and upon said crossing and obstructed same' after having caused or permitted the signal device at the crossing to cease operation. On this issue we state the evidence and the inferences which reasonably may be drawn therefrom in the light most favorable to plaintiff-appellant. Sweet v. Markwart, 158 Cal.App.2d 700, 705-706, 323 P.2d 192.
The accident occurred about 8:30 p. m. on October 21, 1959. Plaintiff was driving a motorcycle north on Studebaker Road in Los Angeles County. Studebaker Road, about 30 feet wide, ran north and south, with one lane for traffic moving in each direction. Defendant's railroad, running east and west, crossed Studebaker. A freight train of 13 cars was standing some distance beyond the crossing. The engine had left the train and had passed over the crossing a short time before the accident to drop a car on a 'Y' on the other side of the crossing. The engine was traveling back to the train when the accident occurred.
Plaintiff was following an automobile. He was traveling 35 to 45 miles an hour. About 200 feet from the railroad tracks he saw the taillights of the car ahead of him, indicating the brakes were on. He 'pulled off to the right' and looked toward the crossing. He saw 'everything was clear,' pulled back in behind the car, and slowed down. He advanced to about 'a length or so' from the car ahead of him. The taillights of the car ahead went off and he assumed it was going to make a left turn. The taillights went on again. Plaintiff pulled off to the right 'to miss him.' As he did so, he saw another car stopped in front of the car he had been following. At that point he 'reached' for his brakes, saw the end of the train, 'hit' his brakes, and slid into it.
There was a 'No. 8' flasher signaling device, equipped with alternately flashing lights on a crossbar, located south of the tracks and east of the highway to warn northbound highway traffic of approaching trains. There were four lights on the device. The lenses of the lights were red and were 8 3/8 inches wide. The globe in each light was 'an 8-volt, 18-watt globe.' On the standard holding the flashing lights and above them there was a large sign in the form of an 'X' reading 'Railroad Crossing and above the sign there was a bell.
The device operated from three independent track circuits, a separate circuit controlling each side of the crossing and a third circuit controlling the crossing area from 27 feet 6 inches east of the crossing to 31 feet 6 inches west of the crossing. It was designed so that the lights and bells would begin to signal as an approaching train from either direction passed over the track at a point 1,100 feet from the crossing. The signal operates for 55 seconds. If a train does not reach a point within 150 feet of the crossing within that period of time, the signal ceases to operate. The signal reactivates and operates for another 55 seconds when the train passes over the track at a point 150 feet from the crossing. If a train approaching on the east side of the crossing does not reach a point 27 feet 6 inches from the crossing or a train approaching on the west side of the crossing does not reach a point 31 feet 6 inches from the crossing within that period of time, the signal ceases to operate. When trains subsequently pass these points, the signal again activates and continues to operate as long as any wheels of the train are on any of the track between the two points. It continues to operate during switching movements back and forth over the crossing so long as one set of wheels is on that section of track. The signal device was designed and placed so as to enable the train crew on an engine or train approaching the crossing along the track to see whether the lights were flashing. A 'RXR' warning sign was painted on the surface of Studebaker 420 feet south of the railroad tracks.
There was some evidence that at no time prior to the collision were the warning signals functioning. There was also testimony that neither the whistle nor the bell of the engine was sounded. There was no flagman at the crossing.
'A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. Rest.Torts, sec. 500 et seq.; Prosser, Torts, pp. 260, 261. Such a tort has been labeled 'willful negligence', 'wanton and willful negligence', 'wanton and willful misconduct', and even Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465, 468.
Section 500 of the Restatement of Torts, cited with approval in Donnelly, reads:
'The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.' 1
Prosser, also cited with approval in Donnelly, says:
"Wantonness,' or 'recklessness,' * * * means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, amounting almost to willingness that they should follow; but this has sometimes been held not to be indispensable, so long as there is great danger known to the actor or apparent to a reasonable man.' (Prosser on Torts, 2d ed., 151, § 33.)
Applying the principle stated, there was no evidence of wanton and reckless misconduct on the part of defendant or of the train crew. There was no evidence that any one of the train crew intentionally did an act or failed to do an act which it was his duty to do, knowing or having reason to know of facts which would lead a reasonable man to realize that his act or failure to act would make it highly probable that harm would follow. In fact, all the evidence was to the contrary. The head brakeman, who was riding on the front of the moving switch engine, testified he was the one who gave signals to the engineer; the crossing flashers were working; the automatic red crossing bells were operating; they continued to ring until the engine was moved off the crossing; the engine bell was ringing; the engine whistle started to blow about 200 feet from the crossing, blowing 'two longs, a short and a very long'; the engine was traveling about 4 miles an hour as it approached within 50 feet of the crossing; a car northbound on Studebaker was stopped and another almost stopped and there were other 'lights' behind it; a car southbound on Studebaker was stopped. The engineer testified the flashers and the bell on the signal were working; he saw them working when he was 3 or 4 car lengths from the crossing; the engine bell was ringing; he started whistling from the switch, which was about 250 feet from the crossing; he blew the whistle long and loud because he knew there was heavy traffic at the crossing and he saw an automobile coming; as the signal started going that car stopped and two cars on the other side...
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