Lua v. Southern Pacific Transportation Co.

• Citation: 9 Cal.Rptr.2d 116,6 Cal.App.4th 1897
• Decision Date: 20 May 1992
• Docket Number: No. B036882,B036882
• Court: California Court of Appeals
• Parties: Panfilo LUA, Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION CO., Defendant and Appellant.

Page 116

9 Cal.Rptr.2d 116

6 Cal.App.4th 1897

Panfilo LUA, Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION CO., Defendant and Appellant.

No. B036882.

Court of Appeal, Second District, Division 4, California.

May 20, 1992.

Certified for Partial Publication ^*

Morris, Polich & Purdy, Robert S. Wolfe, Douglas J. Collodel and Kathleen A. Kelleher, Los Angeles, for defendant and appellant.

Davis and Thomas, Joseph Daniel Davis, Los Angeles, and Charlotte E. Costan, Burbank, for plaintiff and respondent.

EPSTEIN, Associate Justice.

Southern Pacific has appealed from a judgment against it in favor of respondent Panfilo Lua. The dispute between the parties arises out of the injuries Mr. Lua sustained when he tried to climb over appellant's train, which was stopped and blocking a public grade crossing. ¹ The case was tried to a jury, which found for the plaintiff and awarded damages in the amount of $309,400.

Southern Pacific contends that the trial court erred in instructing the jury that a violation of General Order No. 135 of the Public Utilities Commission (P.U.C.) (see 77 Cal.P.U.C. at p. 323), which regulates the length of time a stopped train may block a public grade crossing, constitutes negligence per se. The railroad also contends that the judgment should be reversed due to the misconduct of plaintiff's counsel. Finally, Southern Pacific asks us to reconsider and overrule the decision of another division of this district following an earlier appeal in this case, and on that basis direct the entry of judgment in its favor.

Because we agree with Southern Pacific's first contention and reverse on that ground, we need not reach its contentions regarding attorney misconduct. We decline to depart from established precedent regarding the law of the case and revisit the issues resolved in the earlier appeal.

FACTUAL AND PROCEDURAL SUMMARY

On September 28, 1977, the date of the incident, Panfilo Lua was an unemployed farm worker. He had traveled from Merced to Los Angeles looking for work. Having heard that a cannery was hiring, he took a bus to the vicinity of the cannery and began to walk the remaining blocks, intending to arrive before 8 p.m. It was getting dark by the time he got off the bus.

Plaintiff walked to the railroad tracks at the intersection of San Pablo Avenue and Valley Boulevard. He was unable to cross because the intersection was blocked by a stationary train. The traffic control crossing arms were up, and plaintiff saw no flashing lights and heard no bells. Plaintiff did not know how to use a watch and could not tell time, but he estimated at trial that he waited for ten or fifteen minutes before he climbed onto the train in an attempt to cross. As he put his foot on a coupler the train began to move. Plaintiff's injury resulted.

Plaintiff filed his complaint in August of 1978, and the matter was tried to a jury in July of 1983. The jury found that the defendant was negligent and the plaintiff contributorily negligent. Damages were assessed at $350,000. Ninety percent of the fault was apportioned to Southern Pacific and 10 percent to the plaintiff. An appeal (B007114) from the judgment was heard by Division One of this Court. In an unpublished opinion issued in August 1985, that Division reversed the judgment and remanded the matter for a new trial on all issues. ²

The case was re-tried in June of 1988. This appeal follows.

DISCUSSION

I

As pertinent here, P.U.C. General Order No. 135 ³ provides: "1..... Except as provided in Paragraph 5, a public grade crossing which is blocked by a stopped train, other than a passenger train, must be opened within 10 minutes, unless no vehicle or pedestrian is waiting at the crossing. Such a cleared crossing must be left open until it is known that the train is ready to depart. When recoupling such a train at the crossing, movement must be made promptly, consistent with safety. [p] 2..... Switching over public grade crossings should be avoided whenever reasonably possible. If not reasonably possible such crossings must be cleared frequently to allow a vehicle or pedestrian to pass and must not be occupied continuously for longer than 10 minutes unless no vehicle or pedestrian is waiting at the crossing." (Decision No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at pp. 323-324.)

The trial court instructed the jury that "The Public Utilities Commission of the State of California has ordered that each railroad corporation operating in the State of California shall observe the following regulations in conducting operations on and across public grade crossings." The instruction went on to quote the subsections of Order No. 135 recited above. The court further instructed that "If you find that the defendant to this action violated the Public Utilities Commission Order just read to you and that such violation was a legal cause of injury to another, you will find that such violation was negligence."

Evidence Code section 669 codifies the doctrine of negligence per se based on violation of a statute or regulation. (See Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 349, 224 Cal.Rptr. 326.) The section provides, in pertinent part, "(a) The failure of a person to exercise due care is presumed if: [p] (1) [A person] violated a ... regulation of a public entity; [p] (2) The violation proximately caused ... injury ...; [p] (3) The ... injury resulted from an occurrence of the nature which the ... regulation was designed to prevent; and [p] (4) The person suffering the ... injury ... was one of the class of persons for whose protection the ... regulation was adopted." (Evid.Code, § 669.)

In order for a claim of negligence per se to succeed, all four elements must be shown. The first two are matters for the trier of fact; the second two are to be determined by the court as a matter of law. (Capolungo v. Bondi, supra, 179 Cal.App.3d at pp. 349-350, 224 Cal.Rptr. 326.)

We find that plaintiff's injury did not result from an occurrence the regulation was designed to prevent.

Respondent has cited several cases for the proposition that the California rule is that violation of a regulation limiting the time which a railroad may block a grade crossing is negligence per se. None is persuasive authority. One of them, Hofstedt v. Southern Pac. Co. (Cal.App.Ct.1931) 1 P.2d 470, was decertified for publication and is not citable as precedent. A second case, Hanlon D. & S. Co. v. Southern Pac. Co. (1928) 92 Cal.App. 230, 268 P. 385, involved an injury caused when a stopped train delayed fire trucks responding to an alarm. The final California case cited on this point, Matoza v. Southern Pacific Co. (1922) 59 Cal.App. 636, 211 P. 252, also concerned injury caused by delay, and did not involve a statute or ordinance, nor an issue of negligence per se.

Both parties argue by analogy to California cases reviewing a variety of statutes and ordinances. We find none of those analogies enlightening, and turn instead, as those courts did, to the history of the regulation we are reviewing. (See Capolungo v. Bondi, supra, 179 Cal.App.3d at pp. 350-352, 224 Cal.Rptr. 326.)

Prior to promulgating General Order No. 135, the P.U.C. heard from interested parties and solicited written comments. In findings of fact resulting from that process, the P.U.C. found that "1. The blocking of public grade crossings interferes with the freedom of access of the public using the streets and highways and can result in substantial traffic problems for the public agencies responsible for the control of traffic upon such streets and highways. [p] 2. Public convenience and necessity require regulations which will require the clearing of crossings so as to result in the minimum delay to the public.... [p] 4. The occupancy and blocking of public grade crossings by railroads and the clearing of such crossings by railroads necessarily involve the safety of railroad operations...." (Decision No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at p. 322.)

These findings are addressed to the free flow of traffic and the harm which might be caused by delay. And, since section 5 of the order allows longer delays for a variety of reasons without requiring special precautions for the safety of those blocked by the train, it is apparent that the safety of passersby is not addressed by this order. ⁴

The weight of other authority is in accord with this conclusion. "Statutes which limit the time during which railway trains may obstruct crossings usually are held to be intended to prevent delays of traffic, and so may give rise to an action for damages resulting from such delay, but afford no protection against personal injuries caused by the position of the train." (Prosser & Keeton, Torts (5th ed. 1984) § 36, p. 225.)

In Fox v. Illinois Cent. R. Co. (1941) 308 Ill.App. 367, 31 N.E.2d 805, 808-809, the Illinois Appellate Court held that the purpose of a statute prohibiting trains from remaining on the tracks for longer than ten minutes was the prevention of traffic delay, and that it was not enacted to protect drivers from damage caused by collision with a stopped railroad car. (See also Dunn v. Baltimore & Ohio R. Co. (1989) 127 Ill.2d 350, 130 Ill.Dec. 409, 417-418, 537 N.E.2d 738, 746-747 [similar].)

Peigh v. Baltimore & O. R. Co. (D.C.Cir.1953) 204 F.2d 391, 394, is to the same effect. In that case, the court concluded that a regulation similar to the one at issue here was intended to expedite traffic and encourage commerce, and was not directed at the safety of drivers.

The cases cited by respondent to the contrary are not on point. They establish, at best, that in some jurisdictions a railroad may have a duty to signal, with lights or otherwise, before a stopped train begins to move. (See, e.g., Dodwell v. Missouri Pacific Railroad Company (Mo.1964) 384 S.W.2d 643; Walker v. Southern Ry. (1907) 77 S.C. 161, 57 S.E. 764, Texas & N.O.R. Co. v. Owens (Tex.App.1932) 54 S.W.2d 848.)

The California...