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

• Decision Date: 03 June 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Harvey R. MONTIETH, by his Guardian ad litem, Artia Markham; Artia Markham, Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, William T. Scott, Leonard Lathem, Orville D. Brumfield, Frank E. Cross, Defendants and Respondents. Civ. 8952.

Page 886

311 P.2d 886

151 Cal.App.2d 442

Harvey R. MONTIETH, by his Guardian ad litem, Artia Markham; Artia Markham, Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, William T. Scott, Leonard Lathem, Orville D. Brumfield, Frank E. Cross, Defendants and Respondents.

Civ. 8952.

District Court of Appeal, Third District, California.

June 3, 1957.

Hearing Denied July 31, 1957.

C. Ray Robinson, Merced, and William B. Boone, San Francisco, for appellants.

Rutherford, Jacobs, Cavalero & Dietrich, Stockton, Robert W. Walker, William F. Brooks, Los Angeles, for respondents.

SCHOTTKY, Justice.

This is an appeal from a judgment for defendants in a main line railroad crossing accident case, after verdict by the jury in favor of respondents, and following the denial of plaintiffs' motion for a new trial.

The appellants are Harvey R. Montieth, the bus driver involved in the collision, who sued for alleged personal injuries, and Artia Markham, his mother, who sued to recover medical expenses. For convenience, they will hereafter collectively be referred to as appellants, and Harvey Montieth will generally be referred to as appellant bus driver. The respondents are The Atchison, Topeka and Santa Fe Railway Company and four members of its train crew, i. e., William T. Scott (engineer), Leonard Lathem (fireman), Orville D. Brumfield (brakeman), and Frank E. Cross (conductor). For convenience they will hereafter collectively be referred to as respondents, and the railroad company will generally be referred to as respondent railroad company.

The action was brought by appellants to recover damages from the respondents to the alleged negligence of respondent railroad company and its train crew in the operation of a freight train which collided with a school bus driven by appellant bus driver at the Hatch Road main line crossing in Stanislaus County. No negligence was pleaded as to the maintenance of the crossing. Respondents denied the charge of negligence and pleaded contributory negligence as an affirmative defense.

Appellants do not question the sufficiency of the evidence to support the judgment but contend most earnestly that the court committed prejudicial error in its instructions to the jury. Before discussing these contentions we shall give a brief summary of the evidence as disclosed by the record.

The accident occurred at about 7:00 or 7:05 a. m. on February 23, 1954, at the point where Hatch Road crosses the Santa Fe railroad tracks between Empire and Hughson in Stanislaus County. The crossing is about two miles south of Empire and about one mile north of Hughson

The collision was between a freight train owned and operated by Santa Fe and a school bus owned by the Modesto Union Academy and operated by the plaintiff Harvey Montieth, an able-bodied young man of 19 years. The bus was a 1949 International, it was painted orange-yellow with black letters, and was about 35 feet long. It had a door on the right side at the front and none on the left side.

The Santa Fe locomotive was a double unit Diesel-electric. It was pulling 56 cars and a caboose; 47 cars were loaded. The locomotive was orange and black. It was equipped with a pneumatic bell and whistle.

There is a single set of railroad tracks running generally north and south, while Hatch Road runs generally east and west. There is a railroad bridge over the Tuolumne River to the north of Hatch Road. The tracks make a slight bend to the southeast after crossing the bridge at a point about a mile north of the Hatch Road crossing. Thereafter, the tracks run substantially straight and substantially level to Hatch Road. There is a very slight upgrade at that point, consisting of about 15.8 feet to the mile, or about one-third of one per cent. A whistle board and station sign are located at the side of the tracks about 2,000 feet or 2,306.5 feet north of Hatch Road. The tracks come into the Hatch Road crossing at a slight southeasterly angle.

Hatch Road is a two-lane highway with a white line down the middle. There is also a white line across the road parallel to the tracks and about 10 to 12 feet west of the nearest track. There is no stop sign at the crossing on the west side; there is such a sign at the intersection of Santa Fe Road and Hatch Road just east of the Hatch Road crossing. Santa Fe Road runs parallel to the tracks for some distance. There were no automatic wigwag signals, crossing gates or flagmen at the crossing. There is an irrigation canal about 75 feet wide running along Hatch Road just to the south of it. A railroad bridge carries the tracks across the canal just south of the crossing.

At the time of the accident there was a fog which covered the crossing and a considerable area surrounding it. The fog was variously described as heavy, thick or dense. There were five Santa Fe employees riding on the train. This crew consisted of Scott, the engineer, who was riding on the right side of the locomotive cab, Lathem, the fireman, riding on the left side of the cab, Brumfield, the head brakeman, riding in the cab between the engineer and fireman, Cross, the conductor, riding in the caboose on the right side, and Diehl, the rear brakeman, riding in the caboose on the left side. All except Diehl were made defendants in the action.

The train started from Richmond but the five-man crew listed above took over the train at Riverbank the morning of the accident. Riverbank was about 11 miles or 8 miles or 9 miles north of the scene of the accident. The train left Riverbank at 6:50 a. m. and was on its way south to Calwa, which is the terminal yard just south of Fresno. It was an unscheduled or extra freight and there were no orders for any stops anywhere along the way.

Plaintiff Harvey Montieth testified that he drove to the school (Modesto Union Academy) and picked up the bus. The school is on Hatch Road about four miles west of the scene of the accident. He drove away from the school with the bus at about 6:45 a. m. He was alone in the bus and was on his way to pick up students. It was very foggy and visibility was limited to about 50 to 75 feet. The plaintiff turned on his headlights before starting and they were left on at all times. He drove east on Hatch Road and stopped at the railroad crossing; he stopped the bus about 20 feet west of the tracks; the right wheels of the bus were about two feet off on the shoulder of the road. It was then about 6:55 a. m. After stopping, Harvey got out of the bus and walked about three of four feet in front of it and looked up and down the tracks. He also listened. He did not see or hear anything; there was no train whistle or bell or noise of a train and he did not see any train light.

After looking and listening, the plaintiff walked back to get into the bus; just as he reached the right fender of the bus a car passed going east. He had previously noticed the car stopped behind him. There were two men in the car; the passenger looked out the window as they went by. Then the plaintiff went back around to the front of the bus and wiped off a little piece of the windshield which the wiper did not reach. Thereupon, he went back up and listened for a train again and looked; there was no train bell, whistle, light or sound. He got back in the bus, threw his rag in the glove box or on the floor, saw another car stopped behind the bus, and then sat down. The car was stopped about 5 or 8 feet behind the bus, in the middle of the right lane.

The plaintiff sat down in the driver's seat, leaned forward and looked to his left down the tracks, then looked to the right; there was neither sight nor sound of a train. About the time he looked to his right (south) he started out in low gear and proceeded across the tracks. As he drove forward there was no train whistle, bell or noise and he saw no train light. The bus remained in low gear and was going about 5 to 8 miles per hour at the time of the accident.

The door on the right side of the bus was open and the vent window on the left side was open.

Just before the train struck the bus the plaintiff saw a black shadow to his left. It was just for a split second.

The bus was stopped at the crossing for a period of about two or two and a half minutes altogether. It was a few seconds later that the bus started to move over the tracks.

Four witnesses, Streng, Darnaby, Porter and Smith, testified that plaintiff stopped at the crossing. Two of the witnesses, Streng and Darnaby, corroborated the fact that plaintiff got out of the bus and looked and listened. There were no other eyewitnesses to the accident or to plaintiff's conduct immediately before it happened. These four witnesses and two others testified that they did not hear any train whistles prior to the accident.

The five members of the train crew and four other witnesses testified to hearing the blowing of the train whistles prior to the accident. Scott, the engineer, was not present at the trial, but his deposition was admitted and read in evidence. He testified that there was a whistle board and station sign along the tracks approximately 2,000 feet north of Hatch Road and that that was the place where he last sounded the whistle before the collision. He gave a station whistle and then a regular crossing signal. The signals were continuous, one right after the other. He completed the crossing signal about ten seconds before reaching the Hatch Road crossing. Scott also testified that the bell was ringing continuously from Riverbank to the scene of the accident. After the accident Scott sounded a flag signal on the whistle--a signal to put out a flag to protect the rear of the train. That was after the train came to a stop.

The fireman, Lathem, testified that he could not hear the bell ringing from inside the locomotive cab, but he could hear the sound of the whistle; it was very loud. He also testified that the engineer sounded a station signal and then a...