Marquis v. St. Louis-San Francisco Ry. Co.

• Decision Date: 12 May 1965
• Docket Number: LOUIS-SAN
• Citation: 44 Cal.Rptr. 367,234 Cal.App.2d 335
• Court: California Court of Appeals Court of Appeals
• Parties: Gladys L. MARQUIS and Riley F. Marquis, Plaintiffs and Appellants, v. The ST.FRANCISCO RAILWAY COMPANY, a Corporation, Defendant and Respondent. Civ. 27636.

Page 367

44 Cal.Rptr. 367

234 Cal.App.2d 335

Gladys L. MARQUIS and Riley F. Marquis, Plaintiffs and Appellants, v. The ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant and Respondent.

Civ. 27636.

District Court of Appeal, Second District, Division 3, California.

May 12, 1965.

Rehearing Denied June 2, 1965.

Hearing Denied July 7, 1965.

simpson & Daley, Raymond C. Simpson, Long Beach, and Robert O. Young, W. Corina, for appellants.

Richard K. Knowlton, Los Angeles, for respondent.

ASHBURN, Justice. ^*

Plaintiffs, husband and wife, appeal from a judgment rendered pursuant to an order directing a verdict for defendant in a personal injury action based on an accident which occurred in the State of Arkansas. ¹

The pretrial conference order says: 'Both counsel advise the court that the law of comparative negligence is the law of the State of Arkansas and that each side will try the cause on the basis of the application of such law to this case.' Reference seems to be to section 73-1004 of Arkansas Statutes 1947. ² This presents no problem, however, because the trial court did not permit the case to reach the point where comparison of negligence became possible. The doctrine contemplates a finding of negligence on the part of both parties, whereupon the jury makes the comparison and apportionment of responsibility in the manner prescribed by statute (38 Am.Jur., § 233, p. 919; 35 Cal.Jur.2d § 215, p. 737.) In this instance the trial judge ruled there was no substantial evidence of neglect on the part of defendants and based his direction of a verdict upon that ground.

Before reaching the merits of the ruling, it is necessary to dispose of certain Arkansas statutory presumptions which are discussed in the briefs.

Section 73-1001, Arkansas Statutes 1947 provides: 'All railroads which are now or may be hereafter built and operated in whole or in part in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State.' This has been treated locally as establishing a presumption of negligence of defendant (St. Louis-San Francisco Ry. Co. v. Cole, 181 Ark. 780, 27 S.W.2d 992), but the United States Supreme Court, ruling upon section 2780, Georgia Civil Code, a similar statute, ³ held in Western & A. R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884, that the attempted presumption was invalid because it had no logical relation to the mere fact of a railway accident, saying at pages 641-642, 49 S.Ct. at page 447: 'Upon the mere fact of collision and resulting death, the statute is held to raise a presumption that defendant and its employees were negligent in each of the particulars alleged, and that every act or omission in plaintiff's specifications of negligence was the proximate cause of the death, and it makes defendant liable unless it showed due care in respect of every matter alleged against it. And, by authorizing the jury, in the absence of evidence to find negligence in the operation of the engine and train, the court necessarily permitted the presumption to be considered and weighed as evidence against the testimony of defendant's witnesses tending affirmatively to prove such operation was not negligent in any respect.

'* * *

'Legislation declaring that proof of one fact or group of facts shall constitute prima facie evidence of an ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary, or that operates to deny a fair opportunity to repel it, violates the due process clause of the Fourteenth Amendment. Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty or property. Manlay v. [State of] Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575, and cases cited.

'The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company, or of the traveler on the highway, or of both, or without fault of any one. Reasoning does not lead from the occurrence back to its cause. * * *' This was followed by holdings of the Arkansas courts (e. g., St. Louis-San Francisco Ry. Co. v. Cole, supra, 27 S.W.2d 992 and Kansas City Southern Railway Company v. Shane, 225 Ark. 80, 279 S.W.2d 284) to the effect that the said ruling of the United States Supreme Court merely makes the statutory presumption inoperative when opposing evidence has been produced by the railroad company. To us, this seems an erroneous interpretation of the Henderson decision, but it also seems to represent the present State of Arkansas law upon this adjective matter.

While the preponderance of authority recognizes the rule that in negligence actions the law of the place of accident governs a suit brought in another jurisdiction as to the substantive aspects of the case, this is not true of procedural matters arising in the trial, and they are controlled by the law of the forum. (See, Hamlet v. Hook, 106 Cal.App.2d 791, 794, 236 P.2d 196; Victor v. Sperry, 163 Cal.App.2d 518, 523, 329 P.2d 728; Gallegos v. Union-Tribune Publishing Co., 195 Cal.App.2d 791, 797, 16 Cal.Rptr. 185; Intagliata v. Shipowners & Mer., etc., Co., 26 Cal.2d 365, 375, 159 P.2d 1; Restatement of Conflict of Laws, §§ 385 and 595.) The Intagliata case, supra, says at page 375, 159 P.2d at page 8: 'Moreover, under accepted principles of conflict of laws the effect of contributory negligence is governed by the law under which the cause of action was acquired rather than by the law of the forum. [Citations.]' The Restatement of Conflict of Laws, section 595, page 710: '(1) The law of the forum governs the proof in court of a fact alleged. (2) The law of the forum governs presumptions and inferences to be drawn from evidence.' It follows that, though the rule of comparative negligence would have been applicable here had the case gone far enough to permit of comparison and apportionment, the procedural presumptions of the State of Arkansas do not apply to a California trial of an Arkansas accident. Manifestly, this is likewise true of inferences to be drawn from the evidence. This disposes of arguments made by counsel with respect to presumptions raised by section 73-1001, Arkansas Statutes 1947 (discussed supra) and section 73-1002, which relates to failure of railway operating personnel to keep a constant lookout. ⁴

Our task is to determine upon the basis of California adjective law, not that of Arkansas, whether the trial court overlooked a fact question when it directed a verdict. Had the point of comparing negligence been reached the Arkansas statute would have been controlling, but the procedure leading up to that and other issues is the procedure of the forum, California, and we must determine the propriety of the directed verdict under the California rule which precludes weighing of the evidence at that point. The rule is thoroughly settled. Gish v. Los Angeles Ry. Corp., 13 Cal.2d 570, 573, 90 P.2d 792, 794: "* * * Such a motion is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom. [Citation.] Even though a court might be justified in granting a new trial it would not be justified in directing a verdict on the same evidence. [Citation.] The power of a court in passing upon such motions is strictly limited. It has no power to weigh the evidence, but is bound to view it in the most favorable light in support of the verdict. The right of a court to direct a verdict is the same as the right of a court to grant a nonsuit. This can be done only when, disregarding conflicting evidence and giving plaintiffs' evidence all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such verdict was given. [Citation.]" See also, Post v. Camino Del Properties, Inc., 173 Cal.App.2d 446, 452, 343 P.2d 294; McBride v. Atchison, Topeka & S. F. Ry. Co., 44 Cal.2d 113, 116, 279 P.2d 966.

There is one Arkansas statute which, though not expressly declaring a presumption, imposes a duty upon a railroad engineer violation of which raises as a matter of general law, and in California, a presumption of negligence (Parker v. Southern Pacific Co., 204 Cal. 609, 614, 269 P. 622; Merlino v. Southern Pac. Co., 132 Cal.App.2d 58, 64, 281 P.2d 583; 42 Cal.Jur.2d, § 133, p. 120), which presumption does not disappear as in Arkansas, but must be weighed with the other evidence (Scott v. Burke, 39 Cal.2d 388, 397-398, 247 P.2d 313; Cooke v. Tsipouroglou, 59 Cal.2d 660-667, 31 Cal.Rptr. 60, 381 P.2d 940). This section, 73-716, reads: 'A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars [$200.00] for every neglect, to be paid by the corporation owning the railroad, * * * and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.' Eighty rods is a quarter of a mile, 1,320 feet. This section requires a bell or steam whistle to be sounded from a point at least a quarter of a mile from the crossing, and that it 'be kept ringing...