Merlino v. Southern Pac. Co.

• Decision Date: 30 March 1955
• Citation: 132 Cal.App.2d 58,281 P.2d 583
• Court: California Court of Appeals Court of Appeals
• Parties: Louis MERINO: Patricia Stevens and John Stevens, minors, by and through their guardian ad litem, Louis Merlino; Daniel Ketelsen and Theodore Ketelsen, minors, by and through their guardian ad litem, Emil Ketelsen, Jr.; and Emil Ketelsen, Jr., Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation; Russell G. Robinson; and Ernest Hall, Defendants and Respondents. Civ. 8382.

Page 583

281 P.2d 583

132 Cal.App.2d 58

Louis MERINO: Patricia Stevens and John Stevens, minors, by and through their guardian ad litem, Louis Merlino; Daniel Ketelsen and Theodore Ketelsen, minors, by and through their guardian ad litem, Emil Ketelsen, Jr.; and Emil Ketelsen, Jr., Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation; Russell G. Robinson; and Ernest Hall, Defendants and Respondents.

Civ. 8382.

District Court of Appeal, Third District, California.

March 30, 1955.

Rehearing Denied April 27, 1955.

Hearing Denied May 25, 1955.

Bradford, Cross, Dahl & Hefner, Sacramento, for appellants.

Devlin, Diepenbrock & Wulff, Sacramento, for respondents.

SCHOTTKY, Justice.

Plaintiffs above named commenced an action against defendant Southern Pacific Company and its defendant employees for wrongful death and injuries resulting from a crossing collision on April 29, 1951, between an automobile and a railroad train, in which collision Frances Merlino and Susan Belle Ketelsen, passengers in the automobile, were killed, and plaintiff Emil Ketelsen, Jr., received personal injuries. Susan Belle Ketelsen was the wife of plaintiff Emil Ketelsen, Jr., and Frances Merlino was the wife of plaintiff Louis Merlino and the sister of Ketelsen. The Ketelsens had two minor children and Mrs. Merlino had two dependent minor children by a prior marriage.

At the close of plaintiffs' case defendants moved for a nonsuit, which motion was denied. Defendants introduced evidence, and after both sides had rested their case defendants' motion for a directed verdict was granted. Judgment was entered on the directed verdict and plaintiffs have appealed from said judgment.

It is the established law of this state that the power of a trial court to direct a verdict is precisely the same as the power of the court to grant a nonsuit. As stated in Re Estate of Lances, 216 Cal. 397, at page 400, 14 P.2d 768:

'* * * A nonsuit or a directed verdict may be granted 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.' Newson v. Hawley, 205 Cal. 188, 270 P. 364; Perera v. Panama-Pacific Int. Exp. Co., 179 Cal. 63, 175 P. 454; In re Estate of Sharon, 179 Cal. 447, 177 P. 283; In re Estate of Gallo, 61 Cal.App. 163, 175, 214 P. 496; 24 Cal.Jur., pp. 912-918.

'Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. Umsted v. Scofield Engineering Const. Co., 203 Cal. 224, 228, 263 P. 799.'

Upon appeal from a judgment based on a directed verdict it is the duty of the reviewing court to consider the evidence and the inferences which reasonably may be drawn therefrom, in the light most favorable to the plaintiff. That other evidence may be found in the record which would support equally reasonable inferences to the contrary is of no consequence. Bearing in mind these familiar and well-settled principles we shall summarize briefly the evidence introduced in the trial court.

The accident occurred at Swanston crossing in Sacramento County. Swanston Road crosses a double track main line of the Southern Pacific Company and two switch tracks. From the west, the direction in which Ketelsen's automobile approached this crossing, the tracks were in this order: First, the southbound main, second, the northbound main, and then after the distance of several feet the two side tracks. This crossing was protected by two flasher light signals, one in the southwest corner of the crossing and another in the northeast corner, the latter being between the northbound main and the side tracks. These signals were installed pursuant to an order of the Railroad Commission of the State of California (now the Public Utilities Commission) dated March 15, 1937, which apparently was still in full force and effect on the date of the accident. The flasher type of signal has two lights each of which is enclosed by a cylinder with red glass on each end, so that the light can be seen from both directions. When one light goes on the other goes off, producing a flashing effect. A bell also clangs as the light flashes. To the west signal post is affixed a sign indicating four railroad tracks at this crossing.

On April 29, 1951, shortly before 1:00 o'clock p. m. (Standard Time), Ketelsen was driving his car in an easterly direction on Swanston Road just west of the railroad crossing. Riding in the car with him were his wife and sister. As Ketelsen approached the railroad crossing he observed a freight train about a block away coming from the north and traveling towards Sacramento on the westerly set of rails. He stopped his car so that the front bumper was located about even with the broad painted double white lines extending across his lane of travel, which lines were about seven feet from the most westerly rail. The westerly flasher signal was located about 14 feet west of the west rail of the crossing, so that Ketelsen's position was such that he could not see the flasher signal lights operating, he was sitting just about opposite the signal, and he stated that he did not know if they remained operating after he stopped his vehicle and the train crossed the road. The southbound freight crossed at an estimated speed of 15 to 25 miles per hour. Ketelsen testified that the noise of the passing train made it impossible for him to hear the intermittently sounded bell of the flasher signal and he did not know if it so sounded while he waited for the freight to pass.

As the caboose of the passing southbound freight approached and cleared the crossing a distance of 30 feet to the south edge of Swanston Road, Ketelsen placed his car in low gear and pulled slowly forward. At that time he listened for, but heard no signals or warning bells. He first looked to his right; saw no approaching northbound trains; but could see only approximately 30 feet to the rear end of the caboose on the southbound tracks and, because of the caboose, naturally could see only a little farther to the south on the easterly or northbound set of tracks. He then looked to his left to observe the approach of any possible southbound trains. Next he looked at the signal crossing light at the northeasterly side of the railroad crossing and observed that both of the red lenses of that signal light were somewhat illuminated by the reflection of the sun. They were not flashing, indicating to him that the signal was not in operation, and upon that indication he proceeded to go slowly forward.

As the front of his automobile about reached the easterly set of tracks Mrs. Ketelsen screamed. Ketelsen looked quickly to his right and saw a northbound railroad engine approaching him on the easterly set of rails traveling toward Roseville. There was neither time to stop nor accelerate. He had time only to look at the approaching engine, turn his gaze back to the highway and freeze at the steering wheel of his automobile. Two seconds after the scream the crash followed in which both Mrs. Ketelsen and Frances Merlino lost their lives and Ketelsen sustained severe injuries.

There was evidence from appellants' witnesses that the northbound train had sounded a series of whistle blasts while coming around the Elvas curve, which curve ended about one-half mile south of the crossing.

Mr. J. Franklin, driver of the third car stopped on the west side of the crossing and the second one behind Ketelsen, testified that he heard the northbound train sound its whistle when it was rounding the curve about one-half mile to the south, that he heard no sounding of any whistle from that time on until the accident occurred, that he estimated the speed of the northbound train to be 35 to 40 miles per hour, and that the caboose of the southbound train was still on the crossing when Ketelsen's car started to creep forward.

Mrs. Vivian Franklin, wife of Mr. Franklin, who was riding in the same car, testified that she heard the northbound train sound its whistle when it was at the curve, that she did not hear any subsequent whistle from that time until the accident occurred, and that she estimated the speed of the train to be 45 to 50 miles per hour.

Mrs. Rena Whitton, who was the driver of the first vehicle stopped on the east side of the crossing, testified that she first saw the northbound train when it was about a block (about 400 feet) away from the crossing; that she estimated its speed at 50 miles per hour because it seemed to be going twice as fast as the southbound freight, which she estimated to be traveling at 25 miles per hour; that the northbound engine blew its whistle when about one-half block (about 200 feet) from the crossing; and that Ketelsen's car crept upon the track right after the caboose of the southbound train had cleared. She admitted that she was a poor judge of speed.

Mr. John Perkins, father of Mrs. Whitton, who was riding with her, stated that he heard the northbound engine sounding its whistle when it was about 50 to 60 yards from the crossing, that it was a steady blast until it hit the car, and that he judged the caboose had cleared about 20 feet when Ketelsen started to cross the tracks.

There was considerable testimony adduced by respondents which contradicted the testimony of appellants' witnesses. The members of the train crew testified that both the whistle and the bell were rung simultaneously and continuously from the whistle post,...