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

• Decision Date: 15 December 1958
• Citation: 332 P.2d 746,166 Cal.App.2d 160
• Parties: Gilbert Dean MILLER et al., Plaintiffs and Respondents, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant and Appellant. Civ. 5760.
• Court: California Court of Appeals Court of Appeals

Page 746

332 P.2d 746

166 Cal.App.2d 160

Gilbert Dean MILLER et al., Plaintiffs and Respondents, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant and Appellant.

Civ. 5760.

District Court of Appeal, Fourth District, California.

Dec. 15, 1958.

Robert W. Walker, Matthew H. Witteman, Los Angeles, and Knauf, Henry & Farrell, San Bernardino, for appellant.

Alexander K. Ginsburg, Los Angeles, for respondents.

GRIFFIN, Presiding Justice.

This action involves a railroad crossing collision between an automobile owned and operated by plaintiff Gilbert Dean Miller, and occupied by the other plaintiff, and a freight train at the Santa Fe crossing of Sierra Way, in a residential section of San Bernardino. It occurred on Friday evening, April 29, 1955, about 10 p. m. The weather was clear, cold and dry and the night dark. The intersection is formed by a right-angle crossing of defendant's single track railroad with Sierra Way, which runs in a general north-south direction. The railroad track runs east and west on a right of way paralleling the south side of 30th Street. Sierra Way has an asphalt surface approximately 82 feet wide at the crossing. North-bound, the level of the street rises, like a gradual ramp, as it approaches the rails. The rise commences about 81 feet south of the tracks and reaches an apex upon the crossing itself. A large drainage channel runs underneath the tracks and right of way along the east side of Sierra Way. Trees line the parkway on either side of the street south of the tracks, as do sidewalks and curbs. A residence, to a great extent, obscures the vision of a north-bound automobile on Sierra Way approaching a west-bound train. The same condition prevails in reference to the vision of a west-bound train in reference to north-bound traffic on that street. The track on either side of Sierra Way was flanked by the cross-buck type of railroad crossing signs. The crossing sign confronting north-bound traffic was reflectorized. There was no automatic signaling device at this intersection although there was one on Arrowhead Avenue directly west of it. Photographs in evidence depict a railroad warning sign painted upon the pavement and another, (vertical warning sign) planted in the east parkway, within a block south of the tracks. Over the crossing itself were suspended two street lights, illuminated on the evening of the accident. The Santa Fe operated the track six days a week, generally during the evening hours, without schedule, with a freight train servicing industries on the Redlands loop.

Plaintiff Gilbert Miller was driving himself and his youthful companions, the other three plaintiffs, represented by their guardian ad litem, James A. Miller, up Sierra Way to a drive-in in a 1952 Plymouth sedan at a speed estimated between 20 and 35 miles per hour. All of them, with the possible exception of Joyce Lasky, admitted familiarity with the railroad crossing. Gilbert Miller was 20 years old at the time. Seated to his right was plaintiff Beverly Peterson, 16 years of age. In the back seat, directly behind the driver, sat plaintiff Joyce Lasky, a high school student in her junior year, and plaintiff Edwin Kiefer, 21 years of age at the time of trial.

At the trial, Gilbert Miller, injured seriously in the accident, testified generally that he recalled nothing as to its happening. However, he did testify that he had had a complete overhaul on his car brakes two weeks before the accident; that in the year preceding the accident he had been over this crossing many times, both day and night, and had never seen a train cross this intersection on the track; that he was familiar with the crossing and knew there was a 35-mile per hour sign posted on Sierra Way about three blocks south of the tracks.

The medical testimony was that he suffered severe brain consussion, fractured skull, right facial paralysis (Bell's Palsy), resulting in severe headaches, cutting of a nerve over one eye and nervousness. Special damages to date of hearing indicated about $2,300. There was some evidence of permanent lag in the right eyelid, due to residual effect of facial paralysis. The jury awarded him $5,000.

Plaintiff Kiefer testified that the four of them were riding north on Sierra Way; that he knew the railroad crossing was there; that this evening, when Miller's car was 70 to 80 feet south of the tracks, he saw the headlights of the train and the black and white stripes on the approaching engine when it was about 200 to 250 feet east of Sierra Way; that the moment he saw it he yelled 'train', and immediately thereafter he heard Miller say 'train'; that he felt the application of the brakes on the car and braced himself; that the train did not slow down and he estimated its speed at 27 to 33 miles per hour; that the right front fender of Miller's car struck the left front portion of the engine and he was thrown out and injured; that he saw two suspended street lights overhead but did not remember seeing the railroad crossing sign from down the street that night, although he knew they were approaching a railroad crossing; that he heard no whistle or bell of the train until after the crash; and that Miller's car was traveling about 5 or 6 miles per hour or was stopped at the time of the collision.

His injuries showed a comminuted displaced fracture of the leg (femur); that it took six weeks to heal after major surgery, and resulted in a 3/8 inch shortening of his leg, which was believed to be permanent. Special damages, including medical and hospital expenditures, amounted to about $3,400. He was awarded only $3,500 damages.

Plaintiff Beverly Peterson testified she recognized this area and had been across the tracks at this intersection on many occasions; that this night she did not hear a train whistle or bell; that she heard someone yell 'train', looked and saw something big coming at her; that she didn't know that it was and didn't remember anything else after the collision. Her injuries amounted to supper and lower lips being cut and the loosening of upper teeth in front. Some of the upper ones were broken. Bones of the upper jaw were removed and her face sutured. She had concussion of the brain, lacerations and bruises, and suffered much pain. X-ray pictures were taken which showed probable fractures of mandible and dislocation of the jaw. She appeared to be mentally sluggish compared to her prior mentality. Some permanent disability of the mouth is indicated, and the scars will be permanent. Further neurological type of treatment was recommended, and probable loss of some of the loosened teeth will follow. Her special damages were about $3,100. The jury awarded her $5,000.

Plaintiff Joyce Lasky testified that the car slowed down and collided with the engine but she did not realize what had happened; that the first thing that attracted her was Miller's remark 'train', but she did see the engine down the tracks about 150 to 200 feet from the crossing. Her injuries were not as serious as the others. She testified she suffered general shock, her right leg was injured and was swollen to one-half again its normal size; that the swelling remained for about one week but there was still a lump on the lower portion of it and it caused her to limp for some time; that her forehead had a bump on it which the doctor described as concussion. She was away from her employment for about one week, lost $12 by reason of it, lost as sweater, and contracted hospital and doctor bills in excess of $55. Damages awarded to her amounted to $350.

Defendant, in its brief, concedes that even though the verdicts exceeded the special damages incurred as to each plaintiff, they did appear low in relation to the undisputed evidence of injuries received in reference to plaintiffs Kiefer, Peterson and Miller. The trial court found them to be inadequate, and we conclude that this finding it sufficiently supported.

In passing on a motion for new trial on the ground that the damages awarded are inadequate, the trial judge is entitled to reweigh the evidence and exercise his independent judgment thereon, and if he concludes that the damages proved are not adequate compensation he may grant a new trial on that ground. McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 17, 146 P.2d 34; Uhl v Baldwin, 145 Cal.App.2d 547, 554, 302 P.2d 841. No abuse of discretion appears in granting a new trial on this ground. The principal contention of the defendant on this appeal is that the court should have granted a new trial on all issues and that the judgment should be reversed, particularly since the evidence of defendant's negligence and the evidence of contributory negligence affecting defendant's liability was close and that it affirmatively appears therefrom and from the size of the verdicts rendered that a compromise verdict resulted. It is further argued that it was prejudicial error for the trial court to grant a new trial limited to the issue of damages when it affirmatively appears that the trial court erred in giving an instruction on the doctrine of last clear chance, where there is no substantial evidence to support the theory; and in informing the jury that, as a matter of law, the guest passengers were not guilty of contributory negligence and in refusing to instruct the jury, as requested by defendant, on this doctrine. As to these questions we will give a further resume of the evidence which might affect them.

Engineer Ward, seated in the cab of the engine on the north side, testified generally as to his familiarity with this crossing and the route in general. He said his train of 21 freight cars, including the caboose, was approaching this intersection from the east at about 25 to 28 miles per hour and that this statement was corroborated by a special tape recording device on the locomotive; that he was traveling below the speed limit of 30 miles per hour established by the company for this district; that at a whistle...