Morgan v. Southern Pacific Trans. Co.

• Decision Date: 15 March 1974
• Citation: 37 Cal.App.3d 1006,112 Cal.Rptr. 695
• Court: California Court of Appeals Court of Appeals
• Parties: Jack Anderson MORGAN, Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant. Civ. 13363.

Page 695

112 Cal.Rptr. 695

37 Cal.App.3d 1006

Jack Anderson MORGAN, Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant.

Civ. 13363.

Court of Appeal, Fourth District, Division 2, California.

March 15, 1974.

[37 Cal.App.3d 1008] King & Mussell, San Bernardino, for defendant and appellant.

Garza, Kassel, Jordan & Welebir, San Bernardino, for plaintiff and respondent.

OPINION

KERRIGAN, Acting Presiding Judge.

A Southern Pacific train ran over a pedestrian, resulting in the amputation of the man's legs. The pedestrian's lawsuit charged wilful misconduct and negligence on the part of the train crew. The jury returned a $175,000 general verdict in his favor.

The railroad's appeal is predicated on two grounds: (1) the court erred in the jury instructions (mainly, in allowing the wilful misconduct issue to go to the jury); and (2) the evidence establishes contributory negligence as a matter of law.

The accident occurred shortly before 8 p.m. (after dark) on February 24, 1971 on Southern Pacific tracks located within the western city limits of Riverside. The single set of tracks was situated within a 50-foot median divider which separated the eastbound and westbound vehicular traffic lanes of Magnolia Boulevard. On the south side of the median were two eastbound lanes; on the north were two westbound lanes. The point of impact was approximately 1,528 feet east of where Magnolia intersected with Fillmore Street.

The land area encompassing the accident site may be characterized as rural-residential, with more homes on the south side of Magnolia than on the north. Open fields separate some of the homes.

Magnolia is a busy, heavily-traveled thoroughfare, without curbs or sidewalks. Similarly, no curbs abut the median divider. To avoid the heavy east-west traffic flow, pedestrians commonly walk within the dirt median, either to cross the street or to proceed east or west. Over the years, many persons have been known to walk between the tracks and along the tracks; students utilize the median in going to and coming from school, elderly people, equestrians and bicyclists cross the tracks or travel along either side; and residents of the area regularly use the median for pedestrian purposes.

On the other hand, trains use the tracks rarely--only 3--4 times monthly--and no warning signs are located in the median.

The freight train involved in this accident consisted of an engine, a boxcar and a caboose. The train was backing up, with the caboose leading the way, as it proceeded in an easterly direction towards the Riverside metropolitan area at a speed of 8--12 m.p.h. At the time of the impact, the train had traveled only one-third (1/3) of the way to its intended destination.

The crew consisted of four men: (1) the engineer, (2) the head brakeman, (3) the conductor, and (4) the rear brakeman. All were experienced railroaders and thoroughly familiar with the geographical area. For example, the engineer had been on this particular 'run' for 30 years. Consequently, the members of the crew either knew, or should have known, that pedestrians commonly used the median divider.

The engineer and head brakeman were inside the engine and did not see the accident; likewise, the conductor was inside the caboose doing some paper work and did not see it. The rear brakeman was standing on the platform of the caboose. He saw the plaintiff walking between the tracks a few seconds prior to impact.

As the train rolled eastward in the backing maneuver, the engine had its 'dim' headlight functioning, but it was shining towards the west. There were no lights emanating from the cab of the engine. There were no lights on the boxcar. While the caboose was equipped with a rotating or oscillating red light, it only cast a 'beam' of 20 feet. ¹

The rear brakeman had a white trainman's lantern with him as he stood on the rear platform of the caboose. This lantern gave off a 'flooding-type' of light. The brakeman had either placed the lantern face down on the deck of the platform or had it in his hand just before the accident; in any event, the lantern was not held or located in a position so that the light would point or shine in the direction the train was moving. In short, the lantern gave no warning.

The engine was properly equipped with bells and whistles. While they were apparently in functioning condition, they were not in operation as the train proceeded eastward.

In addition, the caboose was equipped with a warning device--an air whistle.

Just prior to the accident, the rear brakeman was standing near the center of the rear platform of the caboose in close proximity to the air whistle. His job was to keep a lookout for persons who were either on the tracks or close to the tracks. Although he realized that he could not be seen by either the engineer or head brakeman while standing on the caboose platform, he nevertheless remained on the platform from the moment the train started its back-up maneuver.

The rear brakeman first saw the plaintiff at a distance of sixty feet (60 ). Plaintiff was walking with his back to the train. While the brakeman testified that he yelled 'Look out,' he failed to sound the air whistle. In any event, the train traveled 135 feet from the point where it ran over the plaintiff to the point it came to a stop.

Although he apparently suffered from a minor hearing defect, the 59-year old plaintiff otherwise enjoyed good health and was employed as a ranch-hand.

On the day of the accident, he arrived home from work between 3:30--4:00 p.m., drank a can of beer, showered, and had a second beer. ² He did some reading and visited with two friends who came to see him.

Around 7:30 p.m. plaintiff left his home on Magnolia to go to a market located east of his residence on the north side of Magnolia. He walked to the south side of Magnolia, stopped to check for eastbound traffic, and saw defendant's train to his left with the headlight shining away from him (to the west); he also observed the oscillating red light on the rear of the train; the train was then two or three blocks away; when a 'break' in the eastbound traffic occurred, he crossed into the median and looked again to his left and saw the train; from his standpoint, the train did not appear to be any closer than when he first saw it; he started to walk east along the tracks towards the market; he did not hear any train bells, whistles or shouts; ³ his next recollection was waking up in the hospital 3--4 days afterwards.

After he was admitted to the hospital with both legs severed, heroic medical measures were undertaken. Plaintiff's left leg was amputated below the knee; his right leg was amputated above the knee. He remained hospitalized for five months; then spent ten months in a rest home; and thereafter, he experienced ten months in a rehabilitation hospital.

Because of his age, the severity of the injuries, and the sensitivity factor (pain in the stumps), prosthetic devices have not proven satisfactory. Plaintiff will undoubtedly be confined to a wheelchair for the rest of his life.

WILFUL MISCONDUCT

The railroad maintains that the court erred in denying its motion for a nonsuit on the wilful misconduct cause of action at the close of plaintiff's case and compounded the error by instructing the jury on the elements of the doctrine (BAJI No. 3.52). The argument is premised on the ground there was insufficient evidence to allow the case to go to the jury on that theory of liability.

' Wilful or wanton misconduct' travels under several other names. Its aliases include 'serious and wilful misconduct,' 'wanton misconduct,' 'reckless disregard,' 'recklessness,' and combinations of some or all of these. These terms are interchangeable because they all identify the same thing--'an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care' (Prosser, Law of Torts (4th ed. 1971) § 34, p. 184; see also 35 Cal.Jur.2d, Negligence, § 200, p. 722). 'The usual meaning assigned to 'wilful,' 'wanton' or 'reckless,' according to taste as to the word used, is that the actor had intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.' (Prosser, Law of Torts (4th ed. 1971), § 34, p. 185.) The wilful misconduct instruction given by the trial court in this case (BAJI No. 3.52) contains substantially the same wording as Prosser's formulation. The cases, treating the concept under one or another of its labels, define it substantially the same way. (Reuther v. Viall, 62 Cal.2d 470, 42 Cal.Rptr. 456, 398 P.2d 792; Meyer v. Blackman, 59 Cal.2d 668, 31 Cal.Rptr. 36, 381 P.2d 916; Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 26 Cal.Rptr. 769, 376 P.2d 833; Cope v. Davison, 30 Cal.2d 193, 180 P.2d 873; People v. Young, 20 Cal.2d 832, 129 P.2d 353; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 118 P.2d 465; Meek v. Fowler, 3 Cal.2d 420, 45 P.2d 194; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 P. 15; Esrey v. Southern Pacific Co., 103 Cal. 541, 37 P. 500; Olea v. Southern Pacific Co., 272 Cal.App.2d 261, 77 Cal.Rptr. 332; Chappell v. Palmer, 236 Cal.App.2d 34, 45 Cal.Rptr. 686; Pelletti v. Membrila, 234 Cal.App.2d 606, 44 Cal.Rptr. 588; Givens v. Southern Pacific Co., 194 Cal.App.2d 39, 14 Cal.Rptr. 736.)

Also in accord with Prosser are Witkin (2 Witkin, Summary of California Law (7th ed. 1960) Torts, § 361, p. 1562 and 1969 Supp., § 361, p. 730) and the Restatement (Rest.2d Torts, § 500).

Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid...