Olea v. Southern Pac. Co.

• Decision Date: 24 April 1969
• Citation: 272 Cal.App.2d 261,77 Cal.Rptr. 332
• Court: California Court of Appeals Court of Appeals
• Parties: Fredric OLEA, a Minor, by his Guardian ad Litem, Loretta A. Olea, and Loretta A. Olea, individually, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant. Olga OLEA, Brian Dean Olea, a minor, Rodney Dean Olea, a minor, and Roger Dean Olea, a minor, by their Guardian ad Litem, Olga Olea, Plaintiffs and Rsepondents, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant. Civ. 33126.

Page 332

77 Cal.Rptr. 332

272 Cal.App.2d 261

Fredric OLEA, a Minor, by his Guardian ad Litem, Loretta A. Olea, and Loretta A. Olea, individually, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant.

Olga OLEA, Brian Dean Olea, a minor, Rodney Dean Olea, a minor, and Roger Dean Olea, a minor, by their Guardian ad Litem, Olga Olea, Plaintiffs and Rsepondents, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant.

Civ. 33126.

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

April 24, 1969.

Rehearing Denied May 20, 1969.

Randolph Karr, William E. Still and Norman T. Ollestad, Los Angeles, for defendant and appellant.

Magana, Olney, Levy & Cathcart, Raoul D. Magana, Jack Tenner and James H. Davis, Los Angeles, for plaintiffs and respondents.

HERNDON, Acting Presiding Justice.

This appeal is taken by Southern Pacific Company from the judgment entered upon the verdicts of the jury in these two consolidated actions for wrongful death. These actions arose out of the railroad crossing accident in which Fredric and Ronald Olea were killed. The assignments of error to which appellant has devoted substantial argument are presented under two headings phrased as follows: (1) 'The issue of wilful misconduct should not have been submitted to the jury;' and (2) 'There was no basis for instructing on the doctrine of imminent peril.' We have concluded that the evidence presented to the jury was such as to justify and require the giving of the challenged instructions.

The fatal accident occurred at approxiately 2 a.m. on February 16, 1964, at the Vineland Avenue crossing of appellant's tracks in the City of Industry. The automobile in which decedents were proceeding northbound on Vineland Avenue was struck by appellant's eastbound train. At this crossing the most southerly track is a control siding, or passing track; the second track is the main line; the two most northerly tracks are industrial tracks. The crossing is protected only by 'wigwag' signals. The two southerly tracks are designed and utilized to permit the passing of trains.

Approximately 5,440 motor vehicles cross these multiple tracks daily. Each day some 30 trains travelling at authorized speeds up to 70 miles per hour pass over this crossing on the main line track. Whenever the control track is used by one train to permit another to pass it on the main line, there is the danger that vehicles driving north on Vineland will proceed forward after the control track is cleared and directly into the path of the oncoming main line train. During switching operations trains may be stopped on the control track for as much as an hour. The dangerous condition existing at this crossing is further aggravated because the grade approach is 4.8 percent on the ascent from the south, thus further impairing the vision of vehicular traffic. There had been three accidents at this crossing during the period November 1958 to October 1963 although, fortunately, none of these resulted in a fatality.

The expert testimony unanimously agreed that crossing gates were desirable at all multiple track crossings, and particularly those with a large amount of vehicular traffic. Such gates were not only recommended by the Public Utilities Commission but had been recommended at this particular crossing by appellant's own safety engineers. Crossing gates tend to prevent automobiles from proceeding into the path of a second, unseen train, after a first has passed. Where installed they have reduced the fatalities by 90 percent. Appellant could have installed gates at any time at this particular crossing at a cost somewhat in excess of $20,000 and planned to do so at some indefinite future date.

At the time of the instant accident drivers of both northbound and southbound cars had been waiting for a slow moving switching train proceeding westerly on the control track to clear the intersection. When it had done so and come to a stop, the wigwag signals ceased operating, according to the testimony of Richard Amaya, the driver of the first southbound vehicle. Vehicular traffic then proceeded forward in each direction. When Amaya passed over the first of the northerly industrial tracks, he was able to see the train which was rapidly approaching the intersection eastbound on the main line. He stopped his car and futilely yelled and flashed his headlights in an effort to warn the northbound cars that were proceeding into the path of the oncoming train hidden from their view by the westbound train.

The first northbound car moved forward slowly until its driver apparently saw the eastbound train approaching at approximately 60 miles per hour. He first appeared to apply his brakes and then 'gunned' forward, successfully crossing ahead of the train. The decedents were in the second northbound car. It, too, proceeded forward slowly behind the first car but was struck by the eastbound train with the resultant fatalities.

The evidence which we have summarized was entirely sufficient to justify the giving of the instructions on the issue of wilful and wanton misconduct.

'Wilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury to (another) probably will result or with a wanton and reckless disregard of the possible results; the (defendant's) entire course of conduct, * * * is to be considered; and the existence of wilful misconduct is essentially a question of fact. (Citation.) "(A)n intent to injure anyone is not a necessary ingredient of wilful misconduct * * *." (Citation.)' (Reuther v. Viall, 62 Cal.2d 470, 475, 42 Cal.Rptr. 456, 459, 398 P.2d 792, 795.)

In Reuther, our Supreme Court held that where a defendant automobile driver had taken her eyes off the road while trying to retrieve a hot cigarette lighter, the evidence was sufficient to take the question of wilful misconduct to the jury. When we consider appellant's 'entire course of conduct' in the instant case, the issue of wilful or wanton misconduct becomes, at least, a question of fact for the trier of fact.

Citing Levizon v. Harrison, 198 Cal.App.2d 274, 281, 18 Cal.Rptr. 284, 288, appellant contends...