Keller v. Key System Transit Lines

• Decision Date: 17 December 1954
• Citation: 129 Cal.App.2d 593,277 P.2d 869
• Parties: Mary A. KELLER, Plaintiff and Respondent, v. KEY SYSTEM TRANSIT LINES, a corporation, and Darrell W. Reaves, Edward Haines et al., Defendants and Appellants. Civ. 16043.
• Court: California Court of Appeals Court of Appeals

Page 869

277 P.2d 869

129 Cal.App.2d 593

Mary A. KELLER, Plaintiff and Respondent, v. KEY SYSTEM TRANSIT LINES, a corporation, and Darrell W. Reaves, Edward Haines et al., Defendants and Appellants.

Civ. 16043.

District Court of Appeal, First District, Division 2, California.

Dec. 17, 1954.

Rehearing Denied Jan. 14, 1955.

Hearing Denied Feb. 10, 1955.

Donahue, Richards, Rowell & Gallagher, George E. Thomas, Oakland, for appellants.

Joseph F. Rankin, M. F. Hallmark, Oakland, for respondent.

KAUFMAN, Justice.

Defendants appeal from a judgment for damages entered against them after jury verdict in the sum of $18,000 for personal injuries sustained by plaintiff Mary Keller when she was allegedly struck by an interurban train of defendant Key System Transit Lines in the City of Berkeley near the point where defendants' tracks cross Ashby Avenue.

On the date of the alleged accident, March 15, 1952, a single track was being used for both northbound and southbound trains. Northbound trains stopped for passengers on the south side of Ashby Avenue, while southbound trains stopped on the north side of this Avenue. North of Ashby, and paralleling the track on the east is a curbing. East of the curbing is a paved roadway used by northbound vehicular traffic. Gaps occur at regular intervals in the curbing, and at these points the curbing curves toward the track and the area to the track is completely paved. The eastern rail of the track is 4 feet 6 inches from the parallel curbing; the track gauge is 4 feet, 8 1/2 inches; and the overhang on each side of the track of Key System's trains is 22 inches.

All of the witnesses, except plaintiff Mary Keller, who had no recollection of the happening of the accident, agreed that the train stopped before it crossed Ashby Avenue. Plaintiff was waiting to take the southbound train to San Francisco, and had never caught a train at this place. She was standing in the third gap or 'divider' north of Ashby, and had waited five or ten minutes, looking to the north. She did not remember walking, moving or facing south. She thought she had been standing about a foot from the track, but had no recollection of that fact. On cross-examination she stated that she was standing as close as she could be to an imaginary line extending the curbing across the gaps.

A passenger on the train, Mr. Humpert, was called as a witness by plaintiff. He had first observed plaintiff standing in the second gap north of Ashby at the time the train was starting up from its stop south of Ashby. He noticed that she was facing north with her back to the train and that she never moved. Her feet were about sixteen inches from the nearest rail. Plaintiff disappeared from his vision just before the front end of the train got to her. His vision was then blocked by the curved corner of the car. He felt a jar and heard a woman scream. Mr. Humpert stated that the speed of the train increased from the time it had made the stop at Ashby until after it passed the plaintiff. It then came to a gradual stop. He at no time heard any signal from the train.

The motorman Reaves testified that his view was unobstructed and he saw plaintiff when the train was two or three blocks south of Ashby, but began to watch her continuously from the time he reached the center of Ashby Avenue, because he realized she was in a position of danger. He stated that he sounded his gong from the stop until he neared plaintiff, and blew the whistle in the north cross-walk of Ashby. He saw that plaintiff was facing north, and that she never moved from where she was standing in line with a continuation of the curbing. He felt that he could pass her with clearance of a foot. The speed of the train was between five and six miles per hour until the front of the train passed plaintiff, at which time he released the air pressure so that the speed increased to fifteen or twenty miles per hour. He then looked back to the right and saw a woman lying in the street and brought the train to a gradual stop. He had seen her when the train was less than a foot from her, and at that point the train obscured his vision. He did not see the train hit plaintiff. He did not know if there was an impact between plaintiff and the train, and denied that he knew that the train had struck her.

The witness Niculescu, a passenger on the train, did not see plaintiff before or after the accident. He stated that he heard the train's horn as it started on the south side of Ashby. He heard a noise near the door behind him. After the train stopped he saw a green automobile traveling in the same direction as the train, and it also came to a stop.

After the accident, plaintiff was lying in Adeline Street, 26 feet north of the point of impact which was established by scuff marks of plaintiff's shoes on the pavement. The front of the train when it stopped was 162 feet north of plaintiff.

Plaintiff alleged negligence of defendants in operation of the train and maintenance of their station. Defendants denied these allegations and pleaded contributory negligence.

Appellants claim error in the admission of the testimony of Parker, a police officer who had taken a report of the accident from the motorman, Reaves. Over objection the officer was allowed to testify that he had asked Reaves the following question and received the following answer:

'Q. Where was the woman when you first saw her when she was struck by the train? A. You are putting me in an awful spot. I have given you all the information I have been instructed to give by my employers and I greatly appreciate it if you would ask them for details. My hands are tied. You can understand my position as well as I can understand yours.'

This conversation was introduced by respondent for the purpose of attempting to prove that Mr. Reaves knew that the train hit the woman, and hence would tend to impeach his testimony that he did not know that the train struck her, and that she was in the clear as the train approached. Appellants emphasize the fact that the question was asked by a police officer in the course of an official investigation, and that the situation is not similar to those cases in which a spontaneous exclamation or accusation is made by a third party at the scene of the accident which it would be natural for the party to deny if it were not true. See Kohlhauer v. Bronstein, 21 Cal.App.2d 4, 67 P.2d 1078; Baldarachi v. Leach, 44 Cal.App. 603, 186 P. 1060. They say that Reaves had given the police officer all the information that he was required to give under Section 482 of the Vehicle Code, and that he was under no duty, legal or moral, to answer the question. Although it is true that he did not have a duty under that section, if it should be applicable to this type of case, to answer the question, nevertheless his refusal to give information when asked a question undoubtedly making an accusation that the woman was hit by the train, is subject to the inference that he would not answer it because he knew his employers' train was involved. It is certainly unreasonable to infer that his company had instructed him not to make known to the police that it was not involved in the accident! We cannot reasonably infer that the company rules require employees not to give information to the police if they are witnesses to an accident or a crime in which they are not themselves involved. The basis of the rule on admissions made in response to accusations, is the fact that human experience has shown that generally it is natural to deny an accusation if a party considers himself innocent of negligence or wrongdoing. See People v. Simmons, 28 Cal.2d 699, 712, 172 P.2d 18. True there is no legal duty to make such response. We do not consider the fact that the accusation was made by a police officer significant enought to make a different rule applicable to such a case. While respondent has found no California case where the accusation was made by a police officer, she has found a Virginia case, Sanders v. Newsome, 179 Va. 582, 19 S.E.2d 883, in which an admission by the silence of defendant when accused by plaintiff, in the presence of a police officer was held admissible in evidence in a suit by plaintiff for personal injuries. Another case in which an admission by silence in the presence of a police officer was held admissible is Popkin v. Goldman, 266 Mass. 531, 165 N.E. 655.

The case of Henderson v. Northam, 176 Cal. 493, 168 P. 1044, cited by appellants, is not in point, for in that case the alleged admission was held inadmissible because there was no proof that the defendant either heard or understood the statement. Appellants have argued that the question asked here was confusing, that it was compound and would have been objectionable if asked in court, and that no one could clearly understand it. While it is true that the question is not clear as to whether the officer sought to know when the motorman first saw the woman or first saw her after the accident occurred, one thing that is very clear about the question is that it makes the accusation that the train struck the woman. Reaves had answered numerous questions put to him, and it is reasonable to assume that if he did not understand the meaning of this question, he would have so stated, instead of replying as he did.

Appellants cite cases...