Lloyd v. Southern Pac. Co.
| Decision Date | 14 June 1952 |
| Citation | 245 P.2d 583,111 Cal.App.2d 626 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LLOYD v. SOUTHERN PAC. CO. et al. LLOYD et al. v. SOUTHERN PAC. CO. et al. Civ. 14777, 14778. |
Arthur B. Dunne, Dunne, Dunne & Phelps, San Francisco, for appellants.
Howard H. Desky, Nichols, Richard, Allard & Williams, Oakland, for respondents.
In one action Lillian M. Lloyd, an incompetent person 1 (by Harold E. Lloyd, her guardian ad litem) and Harold E. Lloyd, her husband, sued the railroad company and five of its employees for personal injuries sustained by Lillian, and for the death of Donald Lloyd their son aged about 4. In another action Bessie A. Lloyd, the mother of Harold, sued the same defendants for personal injuries which she had sustained. The actions were consolidated and tried together and in the first case the judgment was for $75,000 in favor of Lillian and her husband for her injuries, and $5000 for the death of their son while in the second Bessie A. Lloyd was awarded $15,000. A motion for judgment notwithstanding the verdict was made in each case and denied, and a motion for new trial in each case was likewise made and denied. These appeals followed.
The actions arose out of a collision between the 1939 Buick driven by respondent Harold E. Lloyd, and a Southern Pacific locomotive and tender engaged in switching operations just north of Modesto.
In the late afternoon of December 31, 1948 the Lloyd family set out from their home in Oakland to visit Lillian Lloyd's sister, who lived in Atwater. Harold Lloyd drove, and with him in the front seat were his wife and Donald; in the back seat were Bessie Lloyd and another son, Harold Jr., aged 7 or 8.
The collision occurred at about 6:50 p. m. on highway 99 about a half mile northerly of the northerly city limits of Modesto at a point where that highway is intersected by a county road and by a railroad track as well. The track crosses the highway at an angle of about 45 degrees.
The Southern Pacific main line parallels the highway to the west. East of the highway there are industries, including an icing plant of the Pacific Fruit Express, and the track which crosses the highway runs from these industries lying east of the highway to the main line on the west thereof. At the time in question the locomotive was pulling three refrigerator cars from the icing plant over to the main line group of tracks. The locomotive was backing, hence the rear end of its tender was the front of the train as it crossed the highway from southeast to northwest. The locomotive was not a switch engine, but a road engine, and the tank on the tender was cylindrical in shape.
The front of the Buick came into violent contact with the left rear corner of the tender which for the time being was the right front corner of the train's leading unit as it moved across (at about 6 miles per hour). Donald, in the front seat, was killed, Lillian Lloyd sustained extremely serious injuries, and Bessie Lloyd was injured less seriously.
The train crew consisted of a conductor, an engineer, a fireman and two brakemen. All five were joined as defendants, but the actions were dismissed as to the brakemen.
The claim of negligence is the alleged failure of the defendants to sound any warning signal by bell or whistle, or to have the 'headlight' on the rear of the tender lighted as it approached and crossed the highway. The crew members testified that the bell was ringing and the rear-end 'headlight' lighted before they started across and that both were actively functioning at the time of impact. Harold Lloyd and his mother testified that they heard no bell and saw no light on the engine or tender. They testified, however, that all the windows of their car were up (although the little wing in front of the windows might have been open for ventilation).
The principal question on appeal is whether the respondent Harold E. Lloyd was guilty of contributory negligence as a matter of law.
The testimony of the train crew, on the one hand, that the bell was ringing and the rear-end headlight burning, and the testimony of the Lloyds, on the other, that they heard no bell and saw no headlight created a conflict, see Reynolds v. Filomeo, 38 Cal.2d 5, 236 P.2d 801, and cases cited, and for the purpose of the discussion of contributory negligence we must assume that the bell was not ringing and the 'headlight' was not lighted.
The following facts are established by plaintiffs' witnesses without dispute: that Lloyd had driven over this crossing 8 or 10 times before; that the night was rainy, misty, with a spotty fog and very poor visibility. Lloyd testified that the night was 'very dark, very gloomy', and that as he drove southerly from Manteca the pavement was wet. 'It had to be wet', he said, 'The windshield had water running off it from the windshield wipers, and had had for some time.'
There were several warning signs indicating a railroad crossing, including an illuminated panel suspended over the highway along the approach to the intersection. Lloyd testified that he saw no overhead signs, but admitted seeing a painted crossing sign on the highway. This was sufficient to put him on notice, so there is no need to discuss the other signs. This crossing sign painted on the surface of the highway was 345 1/2 feet northerly of the crossing.
Highway 99 was divided by an 'island'; the southbound half was 26 feet wide with two lanes, and the northbound half likewise. Lloyd was driving in the right-hand lane of the southbound half.
On direct examination Lloyd testified that he had been following another car for some time, at a distance of 75 to 100 feet; that his headlights were on the driving beam; that for the last several miles before the collision he had been traveling 'at around 40 to 50 miles per hour'. When asked if he knew he was coming to a railroad crossing he answered: . He then testified:
'Q. What was the first indication that you had that there was anything wrong ahead at all? A. The car in front of me put on its brakes and swerved to one side, to the right * * *
'Q. How far ahead of you * * * would the lights light up the roadway, can you tell us? A. Thirty--maybe 30 feet.
'Q. What was there that restricted it to that amount? A. Well, the fog, or the mist. You could see the shininess off the pavement.
'Q. When the automobile that was ahead of you swerved, was it in your lane? A. Yes, sir, it was right directly in front of me, in my lane.
'Q. In which direction did it swerve? A. It swerved to the right.
'Q. What did you do? A. Soon as it swerved out of the path I was driving in I seen a dark object. I had my foot on the brake at that time when it swerved, because that is danger, when a car does that. I put my foot on the brake, and immediately I seen this big object in front of me, and I put them on as hard as I could.
'Q. Was there any light of any kind that you saw on that object? A. No, sir, not on that object.
'Q. Were you looking ahead all the time as you went down the road? A. Yes, sir.
'Q. Did you hear any bell or any whistle sounded, in the car? A. No, sir, not a sound.
'Q. How far would you say you were away from where the accident happened when you got your brake on? A. Thirty to fifty feet, maybe. 2
The witness testified that when he saw the object ahead of him it looked 'like these oil tank cars.' He did not remember the impact.
On cross-examination he testified that as he approached the crossing he saw no overhead signs but did see the 'RR' and 'X' painted on the highway, and 'knew from experience that that indicated that there was a railroad crossing ahead.' He testified that after passing over that sign the tail lights of the automobile ahead flared up and swerved to the right, and in the interval between seeing the crossing marks on the highway and seeing the tail lights flare up and swerve, he was looking at the road straight ahead, and at the car at the same time, and saw nothing but the tail lights until the car ahead went clear off the road, whereupon he saw for the first time 'this big black object, the tank' and up to that time he had seen no light except the tail lights of the automobile ahead. He added: 'I remember a light way up high. It was foggy; I mean, you know, it was kind of a hazy like light. * * *
'Q. Now * * * when these automobile tail lights flared up and swerved to the right and you saw a black object, what, if anything, did you do with your brakes? * * * A. I immediately took my foot off the foot feed and put it on the brake. * * *
'Q. At that time your speed was 40 to 50 miles an hour, was it not? A. Yes, sir. * * *
'Q. When you took your foot off the foot feed and applied your brakes, what then happened? A. I didn't say I applied my brakes at that time. I simply put my foot on the brakes until the car went clear off the highway, and that is when I put my brakes on.
'Q. * * * So when the tail lights flared up and swerved, you then took your foot off the foot feed? A. And jammed it on the brake. * * *
'Q. How long after? A. Just a split second.
'Q. When was it with respect to seeing this [train] object ahead of you that you applied your brake? * * * The Witness: Immediately at that time. * * * 'Q. And not when you saw the tail lights flare up and swerve to the right? A. I didn't put my brakes on hard at that time, no, I just slowed down.
'Q. Now, * * * immediately before you applied your brakes, your speed was 40 to 50 miles an hour? A. Yes.
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