Miller v. Western Pac. R. Co.

• Decision Date: 11 September 1962
• Citation: 207 Cal.App.2d 581,24 Cal.Rptr. 785
• Parties: Donald I. MILLER, Jr., a minor, Jeannie F. Miller, a minor, by their Guardian Ad Litem, Donald I. Miller, and Sadie Troxel, Plaintiffs and Appellants, v. WESTERN PACIFIC RAILROAD COMPANY, Defendant and Respondent. Civ. 19659.
• Court: California Court of Appeals Court of Appeals

Page 785

24 Cal.Rptr. 785

207 Cal.App.2d 581

Donald I. MILLER, Jr., a minor, Jeannie F. Miller, a minor, by their Guardian Ad Litem, Donald I. Miller, and Sadie Troxel, Plaintiffs and Appellants, v. WESTERN PACIFIC RAILROAD COMPANY, Defendant and Respondent.

Civ. 19659.

District Court of Appeal, First District, Division 1, California.

Sept. 11, 1962.

Leo Fried, San Francisco, for appellants.

John W. Martin, G. Blandin Colburn, Jr., Richard H. Bailin, Dunne, Dunne & Phelps, San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal from a judgment on a jury verdict for defendant and respondent, the Western Pacific Railroad Company, in an action arising out of a railroad crossing collision between respondent's freight train and an automobile operated by a 17-year-old driver and containing five teen-aged passengers. The action is for personal injuries to two of said passengers, appellants Donald I. Miller, Jr. (hereinafter referred to as Donald), and Jeannie Frances Miller Marchello (hereinafter referred to as Jeannie), and for the death of a third passenger, Linda Sue Whitsell, whose mother is the appellant Sadie Troxel. The driver of the automobile and the remaining two passengers are not parties to this action nor did they testify at the trial. The pertinent facts are as follows.

The accident occurred on October 28, 1957, shortly after 9 o'clock p. m., at the crossing of Lathrop Road and the respondent's Stockton to Oakland railroad line near Lathrop, San Joaquin County, California. The automobile was travelling from east to west and the train was proceeding from north to south. The automobile was being driven by Raymond Tinnin. Jeannie, aged 16 years, was sitting in the front seat of said car between Tinnin and the decedent, Linda Sue Whitsell, aged 14 1/2 years. Donald, aged 15 years, was sitting in the back seat between the other two passengers. The train was operated by John G. Trow, acting as engineer, and Vernon C. Brain, in the capacity of fireman. The former was on the right side of the diesel locomotive consisting of three units which were pulling 38 cars. The latter, whose duty it was to act as observer, sat on the left side of the locomotive. This was the side from which the automobile was approaching the crossing. The train was operating on a regular run from Stockton to Oakland. There was no 'wigwag' signal, nor any watchman, gate or lights at the crossing. There was, however, a railroad crossbar sign and painted white lines across the road at the crossing. On the right hand side of the road, 525 feet from the crossing and facing the approaching automobile, there was located an 'advance reflector' railroad crossing sign. The occupants of the automobile had been to a Civil Air Patrol meeting, nine miles from Lathrop, and were returning to their homes. Jeannie and Donald had been attending these meetings for at least a year, driving with Tinnin, and Linda Sue had been driving to these meetings with Tinnin for at least half a year.

Jeannie testified that she had driven over this crossing with Tinnin on numerous occasions. Jeannie testified on direct examination that the windows of the automobile were rolled up, but on cross-examination she stated she didn't remember whether the windows were up. She also testified: that she couldn't remember whether the car radio was playing or whether there was any conversation between the passengers; that it was a chilly night and 'pitch black'; that she was looking straight ahead; that she did not see any moving lights, but saw the Sharpe General Depot lights some distance to the north; that she remembered the driver looking to the right; that she did not hear any whistle or bell; that she did not know the speed at which the automobile was being driven but that it was not going fast; that there was no slowing down or swerving of the automobile, and no screeching of brakes; that she saw the locomotive '[a]t the very split second of the impact' and that she didn't recall anything about the accident 'except something hitting us.'

Donald testified: that he didn't remember whether the windows were up, but that they probably were because it was cold; that he didn't remember whether the radio was playing, but that he believed it had been turned off before the accident because of static; that he was talking to one of the passengers in the back seat; that he didn't hear any whistle or bell; that he didn't see the train or the crossing; that he didn't remember the accident, but recalled 'coming to' at the hospital.

No evidence was presented as to the conduct or actions of the decedent, Linda Sue Whitsell, except that she was sitting in the front seat to the right of Jeannie.

Officer William E. Roche of the California Highway Patrol testified: that there were no skid marks at the crossing, but that there was a tire abrasion mark two feet east of the railroad track and two feet north of the center line of the highway; that it was a clear night; that the area of the crossing is an open and unobstructed area; that the automobile was travelling between 41 and 50 miles per hour; that the train was travelling approximately 25 miles per hour; that the "whistle was blown for the crossing, and it was also blowing specially for the vehicle that was coming down the road."

Brain testified: that at a distance of 1,400 feet from the crossing his visibility of the crossing was good; that he could then see 2,000 feet down the road; that at 1,300 feet from the crossing he could see the headlights of a car 'a great distance' from the crossing; that the train had not travelled over 50 miles per hour; that he was slowing down for a Southern Pacific interlock beyond the crossing where the speed was restricted to 20 miles per hour; that he didn't pay any attention to the car from the time he first saw its headlights until 'we were about four to five boxcar lengths from the crossing'; that a boxcar is about 50 feet long; that at this time the automobile was from 400 to 500 feet from the crossing; that he could only see the automobile's headlights; that there was nothing to indicate that it would not come to a stop; that its speed was not excessive or unusual; that the whistle was then blowing; that he assumed the driver of the car could hear and see; that he first told the engineer that there was an automobile 'when we were four to five boxcar lengths from the crossing,' when he told him to 'hold the whistle'; that the automobile was then 200 to 300 fect from the crossing; that at this point an emergency application of the brakes would not have reduced the speed of the train to a measurable degree prior to its reaching the crossing; that he first determined that there was going to be an accident when he was about one boxcar length from the crossing, at which time the automobile was about the same distance from the crossing; that he didn't tell the engineer to 'plug the train' (i. e., emergency application of the brakes) until the actual moment of impact; that the engineer 'plugged it' just about the time the automobile hit the engine; that the automobile collided with the left side of the engine about four to five feet from its front end with a 'loud crash'; that the train was travelling at a speed of 25 miles per hour at the moment of the collision; that the front of the engine came to a stop about 800 feet beyond the crossing; and that at no time could he see the driver of the automobile.

Trow testified: that he was handling the whistle, brake lever and other controls; that at a point one mile from the Southern Pacific interlock crossing the train was going about 50 miles per hour; that at the 'whistle board,' 1,397 feet north of the crossing, he turned on the engine bell which continues to ring until it is turned off and that he blew the whistle; that he could not see the area on the left side of the train; that he never saw the automobile at anytime; that Brain first told him that an automobile 'was coming' when he was 'about three car lengths from the crossing', that he then had his hand on the whistle and kept the whistle blowing; that he was told to 'plug' the train at the moment of impact when he went into full emergency; and that at the time of the accident the train was going about 25 miles per hour.

There was also testimony to the effect that the engine was illumined by a stationary headlight 16 inches in diameter situated in the front of the engine about 11 feet from the rail; that the headlight was on the 'bright' position; and that there were other lights on the diesel units consisting of number lights on each side of the front end of the engine; a running light under each side of the cab; and the engine room lights 'which shine out from the portholes.' There was also testimony that the engine was equipped with an instrument which recorded the speed of the train on a tape. This tape was read at the trial by the respondent's assistant roadmaster. It indicated that the train decelerated from 50 miles, at a point four-tenths of a mile from the crossing to 25 miles per hour at the point of the collision.

The appellants assert three assignments of error on the part of the trial court: (1) That the trial court instructed the jury on contributory negligence when the record contained no evidence of any contributory negligence on the part of the appellant passengers; (2) that the trial court improperly refused to give an instruction on the doctrine of last clear chance; and (3) that the trial court, during the trial, made improper remarks which constituted prejudicial misconduct.

The trial court gave several instructions which properly defined negligence and contributory negligence, and in addition gave the following particular instructions on contributory negligence, to wit:

'The passengers in the automobile were under a continuing duty to exercise reasonable care for their own safety at all times. There is nothing in any of the circumstances of this case...