Jensen v. Southern Pac. Co.

• Decision Date: 22 November 1954
• Citation: 129 Cal.App.2d 67,276 P.2d 703
• Court: California Court of Appeals Court of Appeals
• Parties: Gladys JENSEN, and Gladys Jensen as Guardian Ad Litem of Ronald K. Jesen and Robert K. Jensen, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY, a corporation, C. A. Maddux, et al., Defendants, Southern Pacific Company, a corporation, Appellant. Civ. 15931.

Page 703

276 P.2d 703

129 Cal.App.2d 67

Gladys JENSEN, and Gladys Jensen as Guardian Ad Litem of Ronald K. Jesen and Robert K. Jensen, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY, a corporation, C. A. Maddux, et al., Defendants, Southern Pacific Company, a corporation, Appellant.

Civ. 15931.

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

Nov. 22, 1954.

Rehearing Denied Dec. 22, 1954.

Hearing Denied Jan. 19, 1955.

Rankin, Oneal, Luckhardt, Center & Hall, Duncan Oneal and Hugh S. Center, San Jose, W. R. Dunn, Burlingame, for appellant.

Fitzgerald Ames, Sr., San Francisco, James F. Boccardo, David S. Lull and Edward J. Niland, San Jose, for respondents.

FRED B. WOOD, Justice.

The widow and two minor children of Kresten Jensen recovered judgment for $25,000 from Southern Pacific Company for the death of Kresten, which occurred while he was driving a truck easterly on Broadway Street, Burlingame, across the Southern Pacific tracks. He was hit by a southbound train. It was 5:00 p.m. on May 8, 1946.

(1) Did the verdicts in favor of the engineer, conductor and fireman, employees of the Southern Pacific Company, exonerate the company from liability based upon negligent operation of the train? No.

If the company's liability, predicated upon negligent operation of the train, rested solely upon respondeat superior and not upon its own independent tort, exoneration of the trainmen would have exonerated the company. Freeman v. Churchill, 30 Cal.2d 453, 461, 183 P.2d 4, and authorities there cited.

However, in the instant case, plaintiffs in one of the counts of the complaint, pleaded concurrent liability upon the part of the company and the trainmen. ¹ Such allegations presented the possibility of proof of independent negligence upon the part of the company. This principle was recognized in Benson v. Southern Pacific Co., 177 Cal. 777, 171 P. 948. 'The verdict in the case was against the defendant Southern Pacific Company, and no reference was made therein to the other defendant, the motorneer.' 177 Cal. at page 778, 171 P. at page 948. The complaint was framed in part upon the negligence of the employee and the responsibility of the employer therefor but it was also alleged that the defendants were negligent in operating the train at an excessive speed at a crowded thoroughfare. 'In so far as this was done without express direction of the employer it would be liable therefor only on the rule of respondeat superior. If, however, the negligent speed was maintained by the express direction of the employer, the latter would, on that account, be negligent, and its negligence would concur with that of the employe who obeyed the instruction by operating at such negligent speed and the right to recover against them would be joint.' 177 Cal. at page 779, 171 P. at page 949. It further appeared that there was evidence 'tending to prove that the train was being operated on schedule time and at a rate of speed predetermined by the defendant corporation. If the verdict was based upon that view of the case, the responsibility of the parties defendant being joint, the defendant company would not be prejudiced by the failure to find against its codefendant. All intendments being in favor of the verdict, it must be considered that the jury based the same upon a finding of joint liability, unless there is something in the record which prevents that conclusion.' 177 Cal. at page 780, 171 P. at page 949. The absence of a verdict in respect to the trainman in the Benson case does not render the reasoning of the court in that case any less applicable to the pleadings and the evidence in our case, as said in Hedlund v. Sutter Medical Service Co., 51 Cal.App.2d 327, 335, 124 P.2d 878, 883; 'We recognize that in the Benson case no verdict was returned for or against the servant, but the case was treated by the court as one in which the failure to return a verdict was tantamount to a verdict in the servant's favor. It was cited to this effect in Blackwell v. American Film Co., 189 Cal. 689, 698, 209 P. 999.'

We find nothing inconsistent with these views in Will v. Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44, or other subsequent decisions in this state.

In our case, there was evidence that the company, not the trainmen, directed and controlled the speed of trains at the crossing. The engineer testified that he did not have the determination of speed; that he did not determine whether he should go 60 miles an hour past crossings; the speed boards regulated the speed of the train that he maintained; the type of crossing protection did not make any difference as to the speed he maintained; that 'our speed is all regulated by speed boards.' The time schedule also governed. It was prescribed by the company, not by the trainmen. According to the conductor's best recollection the speed of the train at the time of the accident was sixty miles an hour.

(2) Did the superior court have jurisdiction to determine whether or not

the defendant company was negligent in failing to provide crossing protection additional to that required by the Public Utilities Commission? Yes.

The defendant company maintained at this crossing a warning device known as the Griswold, installed pursuant to an order of authorization of the Public Utilities Commission in 1934 upon application of the company for permission to make such an installation. This order was made by the commission against the background of its General Order No. 75-A which in 1939 was superseded by General Order No. 75-B, prescribing regulations for the protection of grade crossings. Section 8 of order 75-B declares that no railroad shall 'remove' any form of crossing protection or 'reduce' the hours during which any such protection is maintained or 'substitute' any form of crossing protection for a form already maintained unless the consent for such 'removal, reduction or substitution' shall have been secured from the commission, save for certain exceptions not here relevant.

It appears that the commission has given no consent to any such 'removal, reduction or substitution' at this crossing at the sole expense of the defendant company. Prior to the commission's installation of the Griswold signal in 1934, the City of Burlingame in 1930 and again in 1931 applied for orders requiring the company to install gates at this crossing. The commission granted the first request contingent upon the city's paying half the cost and the second request contingent upon the city's paying all the cost of installation. The city failed to meet those conditions.

The company contends that we have here the exercise by the Public Utilities Commission of exclusive jurisdiction for the protection of the traveling public at street and railway grade crossings 'which establish the minimum and the maximum of care to be exercised in the matter of warning highway travelers of trains in the course of usual operations,' at the very crossing at which the accident here involved occurred. The company in this behalf invokes the plenary power which the Constitution gives the Legislature to confer authority upon the commission and the exercise of that plenary power as expressed in such statutes as sections 768, 1202, 1706, 1709, 1759, 2109 and 2110 of the Public Utilities Code and interpreted in such decisions as Los Angeles Ry. Corp. v. City of Los Angeles, 16 Cal.2d 779, 783-788, 108 P.2d 430; Northwestern Pac. R. Co. v. Superior Court, 34 Cal.2d 454, 211 P.2d 571; People v. Western Air Lines, 42 Cal.2d 621, 630, 633-634, 268 P.2d 723; Holder v. Key System, 88 Cal.App.2d 925, 932, 200 P.2d 98.

The fallacy of this argument inheres in the failure to distinguish between the functions respectively exercised by the commission and the court in the situation presented by the facts of this case. The overlap of function is seeming, not real. The commission acts in a legislative capacity; the court, in a judicial capacity. The commission lays down requirements governing future conduct by the company for the safety of the public at grade crossings. The court determines whether or not the past conduct of the company was in violation of duties owed by it to particular members of the public. The state, in prescribing such safety regulations (whether done by legislative enactment expressed in a statute or by action of the commission expressed in an order), has never gone so far as to say to a utility company that compliance therewith constitutes a complete discharge of its duties toward the public. The state does not undertake to foresee and declare in advance what, under all circumstances, constitutes ordinary care. Regulations of this nature lay down minimum, not maximum, requirements Hinkle v. Southern Pacific Co., 12 Cal.2d 691, 701-702, 87 P.2d 349; Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 126, 137 P.2d 441; Bush v. Southern Pac. Co., 106 Cal.App. 101, 108, 289 P. 190; Lloyd v. Southern Pacific Co., 111 Cal.App.2d 626, 637-638, 245 P.2d 583.

Indeed, the regulations here involved show upon their face that they are minimum, not minimum and maximum. Section 8 of General Order 75-B proscribes merely the 'removal, reduction or substitution' of crossing protection devices without commission consent. It does not prohibit 'additions' thereto without such consent. And section 7 of the General Order affirmatively sanctions such 'additional protection' without prior consent. It requires merely that additional installations be 'reported' to the commission.

(3) Was it error to permit the jury to consider whether or not ordinary care required the furnishing of certain warning devices, such as a flagman or crossing gates? No.

Defendant's complaint under this head seems to be that the question whether or not a person of ordinary prudence would have furnished one or more additional warning devices, such as a flagman or gates, presented technical engineering questions improper for submission to the...