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

• Decision Date: 08 December 1959
• Court: California Court of Appeals Court of Appeals
• Parties: Vergil LARSEN, Guardian of the Person and Estate of Vergil Paul Larsen, an Incompetent Person, Plaintiff and Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation; J. T. Teirweiler; E. Malone; S. H. Shobe; E. Hazlett; J. Waterfield; Doe One; Doe Two; Doe Three and Doe Four, Defendants. The Atchison, Topeka and Santa Fe Railway Company, a corporation, Defendant and Respondent. Civ. 23712.

Page 36

1 Cal.Rptr. 36

176 Cal.App.2d 21

Vergil LARSEN, Guardian of the Person and Estate of Vergil Paul Larsen, an Incompetent Person, Plaintiff and Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation; J. T. Teirweiler; E. Malone; S. H. Shobe; E. Hazlett; J. Waterfield; Doe One; Doe Two; Doe Three and Doe Four, Defendants The Atchison, Topeka and Santa Fe Railway Company, a corporation, Defendant and Respondent.

Civ. 23712.

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

Dec. 8, 1959.

Rehearing Denied Jan. 4, 1960.

Hearing Denied Feb. 3, 1960.

Charles H. Kent, San Pedro, for appellant.

Robert W. Walker, Richard K. Knowlton and Matthew H. Witteman, Los Angeles, for respondent.

ROBERT H. SCOTT, Justice pro tem.

Plaintiff appeals from an adverse judgment after trial by the court without a jury in an action for personal injuries sustained when his automobile collided with part of a freight train.

With two companions he was driving his car at about 2:50 a. m. northbound on Wilmington Avenue in Los Angeles County and when he came to the railway tracks which crossed that street he collided with a railway car which was part of a train and which was blocking the crossing. His two passengers were killed and plaintiff sustained brain injury and loss of memory. He did not testify at the trial.

There was no eyewitness to the accident, which was discovered about two hours after the collision. Shortly after discovery of the accident plaintiff was found by a passerby wandering at a point some distance from the crossing. His face was covered with blood. He was hospitalized and was treated for his injuries. He talked with a police officer and with his father. He was later committed to the Veterans' Administration Hospital at Brentwood, California, because of his mental condition.

There was no automobile wigwag or light signal at the crossing or overhead light at or near it. There was a railway-crossing sign consisting of post and cross-arm on each side of the crossing and a railway-crossing road sign on a post located six to eight feet east of the roadway and not more than 450 feet south of the crossing.

The train, consisting of two road engines and about 62 railway cars including caboose, first passed over the crossing at about 2:30 a. m. on the day of the accident. There was a switching operation consuming 15 to 20 minutes, during which time the train blocked the crossing and by 2:55 a. m. it had moved entirely away from the intersection.

At the start of the switching operation the train backed west over the crossing and a brakeman on the caboose at the west end of the train dropped a lighted yellow 10-minute fusee on each side of the crossing. The collision occurred at a time when the fusees may have entirely burned out. The railway car was standing unattended by any flagman; no whistle, horn or bell was being sounded at that time and, except for any possible remaining light of the fusee, it was in the dark and was blocking the crossing.

By the impact, the south side of one hopper car, the sixth or seventh car ahead of the caboose, and a lever of a car next to it were damaged. The hopper car was 40 feet long and 14 feet high. The front end of the automobile was heavily damaged, the steering wheel was bent and the front seat was torn loose. The vehicle when found had been dragged 48 feet east and came to rest parallel to the tracks headed east and about four feet from the south rail. The train crew were unaware of the accident until several hours later.

The trial court found that defendant was negligent and that this was a proximate cause of the collision. It further found that plaintiff was also negligent and that this was also a proximate cause. It concluded that plaintiff was not entitled to recover and gave judgment for defendant.

The burden of proof was on defendant to establish by a preponderance of evidence that plaintiff was negligent and that such negligence was a proximate cause of the accident.

The only question on this appeal is whether defendant has sustained this burden.

Because of brain damage and loss of memory plaintiff was unable to testify at the trial. He was entitled to the presumption that he had exercised due care and had obeyed the law. Code Civ.Proc. § 1963, subds. 1, 4; Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313; Scott v. Sheedy, 39 Cal.App.2d 96, 101, 102 P.2d 575; Hoppe v. Bradshaw, 42 Cal.App.2d 334, 340, 108 P.2d 947; Masterson v. Ward, 157 Cal.App.2d 142, 147, 320 P.2d 613. '[W]here a plaintiff by reason of loss of memory is unable to testify respecting his conduct at and immediately before the time of the accident, and produces no witnesses who testify to such facts, he is entitled to the benefit of the presumption that he was exercising due care.' Simon v. City & County of San Francisco, 79 Cal.App.2d 590, 598, 180 P.2d 393, 398. The record clearly shows that the trial court gave the full benefit of this presumption to plaintiff before reaching a decision adverse to plaintiff on the issue of contributory negligence.

This presumption was not conclusive but was disputable (Code Civ.Proc. § 1963) and hence could be overcome if there was adequate competent evidence to the contrary or a reasonable inference from the evidence adduced.

The trial court had the duty to determine the issue of fact as to whether, in the face of the presumption, the evidence and inferences reasonably drawn therefrom were sufficient to establish contributory negligence of the plaintiff. Smellie v. Southern Pacific Co., 212 Cal. 540, 550, 299 P. 529.

Both inferences and presumptions are evidence (Code Civ.Proc. § 1957). Neither was as a matter of law entitled to be accorded greater weight than the other by the trial court. An inference is a pertinent and reasonable deduction drawn from circumstantial evidence, i. e., from evidence which is circumstantial as to the fact deduced, and may outweigh a disputable presumption or even direct evidence. It was the duty of the court to determine the issue of fact as to whether the evidence and inferences drawn therefrom pointing to negligence of plaintiff as a proximate cause of the accident were sufficient to outweigh the presumption of due care and law observance. Its determination is conclusive upon an appellate court...