Powell v. Pacific Elec. Ry. Co.

• Decision Date: 04 April 1950
• Citation: 35 Cal.2d 40,216 P.2d 448
• Court: California Supreme Court
• Parties: POWELL et al. v. PACIFIC ELECTRIC RY. CO. et al. L. A. 21092.

Page 448

216 P.2d 448

35 Cal.2d 40

POWELL et al. v. PACIFIC ELECTRIC RY. CO. et al.

L. A. 21092.

Supreme Court of California, in Bank.

April 4, 1950.

Charles A. Thomasset, Los Angeles, for appellants.

C. W. Cornell, O. O. Collins, Malcolm Archbald, John R. Allport and John H. Gordon, Los Angeles, for respondent.

SPENCE, Justice.

Plaintiffs appeal from a judgment entered on a verdict denying them recovery of damages for the death of their minor son in a railroad crossing accident.

As sole ground for reversal, plaintiffs urge that the evidence established as a matter of law that defendant railway company was negligent, and that such negligence was the proximate cause of the fatal accident. But this appears to be the 'usual fact case' for the jury's determination of liability upon the controverted issues. Taylor v. Wright, 69 Cal.App.2d 371, 374, 159 P.2d 980. So applicable is the elementary rule that 'when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.' Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184; see, also, Raggio v. Mallory, 10 Cal.2d 723, 725, 76 P.2d 660; Juchert v. California Water Service Co., 16 Cal.2d 500, 507-508, 106 P.2d 886; Peri v. Los Angeles Junction R. Co., 22 Cal.2d 111, 117, 137 P.2d 441; Bryant v. Market Street R. Co., 71 Cal.App.2d 508, 509, 163 P.2d 33. Such settled principle of law requires affirmance of the judgment herein.

The record consists of the judgment roll and a settled statement from which appear the following facts: Appellants' son died as the result of injuries sustained in a collision between one of respondent's interurban trains and a truck operated by one Lester D. Dewey. At the time, decedent was in the employ of Mr. Dewey and was being transported to the latter's place of business. The fatal collision occurred about 1:00 p.m. on August 28, 1946, at the intersection of 92nd Street and respondent's private right of way in the city of Los Angeles. The weather was clear. At the crossing point involved, 92nd Street, running east and west, was 30 feet wide, and the right of way, running north and sough, was more than 100 feet wide. Graham Avenue paralleled the right of way on the easterly side, and it was 32 feet wide with curbs on both sides. On a pole at the northwest corner of Graham Avenue and 92nd Street there was an automatic wig-wag signal, and Graham Avenue itself was protected by a boulevard stop on its easterly side.

The right of way had six sets of rails, the first four of which at the trial were designated from east to west as A, B, C, and D. The accident occurred when respondent's southbound through train traveling on track C collided with the truck in which appellants' son was riding as it crossed the right of way from east to west on 92nd Street. The easterly rail of track C and 55 feet from the westerly curb of Graham Avenue. The truck made a boulevard stop on the easterly side of Graham Avenue, crossed that street, and entered respondent's right of way, proceeding over tracks A and B without stopping until it reached track C, where it was struck by the southbound train. There was no traffic ahead of the truck and none crossing in the other direction.

The truck was a 1936 Diamond T two-ton, flat bed, open body model with no stakes, sides or roof, and was regularly used by the owner to transport merchandise in his furniture business. At the time of the accident, appellants' son and two other boys were sitting on the truck platform behind the cab. The impact of the collision hurled appellants' son over his two companions and onto the ground, where he was struck by the train and suffered skull injuries from which he subsequently died. The point of impact was established as seven feet south of the prolongation of the north curb of 92nd Street and fifty-four feet west of the west curb of Graham Avenue.

Lester D. Dewey, the driver of the truck and a witness for appellants, testified that traveling west on 92nd Street, he made the boulevard stop at Graham Avenue, continued 'straight across Graham' at 'about 8 miles an hour' and was 'headed into the Pacific Electric right of way' at the '92nd Street crossing'; that he was 'approximately half way across' Graham Avenue when he 'first saw the train,' which was then about '900 feet' away and 'rolling (at) a pretty good rate of speed' perhaps 'fifty miles an hour'; that he did not know 'whether or not the wig-wag was going' but 'if it was, (he) didn't see it'; that when he 'made the boulevard stop' at Graham Avenue, his 'brakes were operating all right'; that after he saw the train coming and that he 'didn't have a chance to beat it (across),' he tried to stop as he started over the tracks but without effect because of an unexpected and complete failure of his hydraulic brakes; that he 'kept right on going,' rolling 'very slowly'; that he then 'pulled the emergency back, but (it) wasn't good enough to stop (the truck) before it got on the track (C) * * * just enough to catch the right front wheel of the front end of the truck'; that 'at the time the train actually hit the truck, he (the motorman) probably wasn't going over fifteen miles an hour, because he had already used his breakes (to) slow the train down.' In the course of cross-examination, Mr. Dewey stated that he 'first * * * thought (he) might have time to beat the train across' but then he 'saw it was traveling pretty fast' so he decided 'as he reached 'A' track' to stop; that 'if the brakes hadn't (gone) out, (he) could have stopped (the truck) instantly * * * at the speed (he) was traveling,' which was about eight miles per hour; that the stop would have been at 'about lane 'B"; that he was 'familiar with that crossing' and that was the 'customary place for people to stop.'

The motorman, Wilmer I. Kivett, testified in substance, as a witness for respondent, that as he approached 92nd Street, he was operating two cars; that the sun was shining and for a distance of 2,000 feet north of the scene of the accident, his view of the intersection was unobstructed; that there was no traffic ahead of him and none crossing the intersection; that when he was about 600 feet away from the scene of the accident, he started braking and continued braking for a distance of 400 feet, thus reducing his speed to 25 miles per hour; that he released his air and started coasting when he first saw the truck, and continued to coast until he was about 75 feet from the scene of the actual collision, when he applied his emergency brake; that he was not braking at all for a distance beginning at a point 200 feet north of the intersection (when he first saw the truck) to a point approximately 75 feet from the intersection; that the truck was on the first rail of the tracks denominated A when he first saw it; that while he was approaching, he saw the truck cross tracks A and B without stopping; that at 25 miles per hour he could have stopped his train within 250 feet, and that he did bring it to a stop about 20 feet south of the south curb of 92nd Street.

It was stipulated that this witness at the coroner's inquest, which was held seven days after the accident, testified as follows: 'I was southbound and had pinched down to the company speed of 25 miles an hour or less for the crossing and about 150 feet from the crossing I saw the truck enter the right-of-way. I thought the truck was going to stop and I released my air and at that time I was going about 25 miles an hour. Then, I saw the truck wasn't going to stop so I put my train into emergency about 75 feet from 92nd Street and the truck rolled onto the private right-of-way and the left front corner of the car caught the right front wheel and fender of the truck throwing it around and off the right-of-way.' He further stated at that time that when he 'first observed' the truck, it was 'at the west curb line of Graham' just 'entering the right-of-way' and his train was about '150 feet north of 92nd Street'; that he 'thought (the truck) was going to stop,' but he 'couldn't tell * * * if (its) brakes had been applied'; that '(the truck) wasn't traveling very fast'; that 'the wigwags were in operation when (the train) entered the intersection' and he 'assumed that the truck was going to stop.'

Over respondent's objection, appellants were permitted to introduce into evidence certain train operating rules and regulations of the railway company, whereby it was required that motormen reduce their 'speed * * * a sufficient distance in advance' of a highway crossing 'so that train will be allowed to coast on approach to crossing, to enable fulll braking power being...