Simmons v. Southern Pac. Transportation Co.

• Decision Date: 28 September 1976
• Citation: 133 Cal.Rptr. 42,62 Cal.App.3d 341
• Court: California Court of Appeals Court of Appeals
• Parties: Donald SIMMONS and Mary Jane Fernie, Plaintiffs, Respondents and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY and Joseph M. Murphy, Defendants, Appellants and Respondents. Civ. 35721.

Page 42

133 Cal.Rptr. 42

62 Cal.App.3d 341

Donald SIMMONS and Mary Jane Fernie, Plaintiffs, Respondents and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY and Joseph M. Murphy, Defendants, Appellants and Respondents.

Civ. 35721.

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

Sept. 28, 1976.

As Modified on Denial of Rehearing Oct. 27, 1976.

Hearing Denied Nov. 24, 1976.

Knox, Ricksen, Snook, Anthony & Robbins, Oakland, Corrigan & Stephenson, Douglas E. Stephenson, San Francisco, for defendants and appellants

Hurd, Meyer, Mitchell & Kaufman, Irving J. Hurd, Jr., Jackson E. Morrison, Oakland, for plaintiffs and appellant.

BRAY, Associate Justice. ^*

Defendants Southern Pacific Transportation Company and Joseph M. Murphy appeal from judgments of the Contra Costa County Superior Court after jury verdict in favor of plaintiffs Donald Simmons and Mary Jane Fernie. Plaintiff Donald Simmons appeals on the limited issue of the failure of the said superior court to instruct on punitive damages.

ISSUES PRESENTED

Defendants' appeal.

1. Plaintiffs' counsel was guilty of prejudicial misconduct.

2. The court erred in instructing on the doctrine of wilful misconduct.

3. The court properly instructed on Public Utilities Commission General Order No. 75--B.

4. Testimony concerning the failure of railroad employees, generally, to give accident statements to California Highway Patrol officers was irrelevant and immaterial.

5. Testimony concerning a prior vehicular accident at the same crossing was irrelevant.

6. Much of witness Gardner's testimony was irrelevant and immaterial and prejudicial.

7. Evidence of a subsequent accident at the crossing was admissible.

8. Southern Pacific's motion to take judicial notice of certain judicial proceedings must be denied.

Plaintiff Simmons' appeal.

9. The court did not err in failing to instruct that the jury could award punitive damages.

RECORD

On April 15, 1970, plaintiffs Donald Simmons and Mary Jane Fernie, heir of Allen Christian, deceased, filed a complaint for damages in the Contra Costa County Superior Court against defendants Southern Pacific Transportation Company (Southern Pacific) and Joseph M. Murphy. A jury found for plaintiffs and against defendants assessing damages for Simmons in the sum of $225,000 and for Fernie in the sum of $22,500. Judgment on the verdicts was entered Defendants' motion for a new trial was denied.

Defendants filed timely notice of appeal. Plaintiff Simmons filed timely notice of appeal on the limited issue of the failure to instruct on the issue of punitive damages. ¹

FACTS

The accident which is the subject of this case occurred on April 24, 1969, at a railroad crossing, referred to herein as the Dowrelio crossing, which is in an unincorporated area of Contra Costa County near the town of Crockett.

On the morning of the day of the accident, Donald Kittilstad, Allen ('Waldo') Christian, and plaintiff Simmons went to Dowrelio Boat Harbor (hereinafter Dowrelio's) to work on Kittilstad's boat. At approximately 5 p.m. they went to the restaurant and bar at Dowrelio's. They left approximately an hour later. Kittilstad walked 10 to 20 feet ahead of his companions toward his automobile. It was necessary to cross 4 sets of railroad tracks in order to get to the car. Kittilstad proceeded across the tracks. When Simmons was 'A good full step' from the track, he looked to the left and saw a train about 400 feet away approaching them. He said, 'Look out, Waldo, there's a train.' Christian, who turned to look to the left, stepped into a hole and fell forward on the tracks. Simmons attempted to pull Christian from the tracks. He was successful in pulling Christian's foot out of the hole but was unable to pull him from the path of the train. The train struck both men, killing Christian and severely injuring Simmons whose arm was eventually amputated as a result of the injuries sustained. Plaintiff Simmons testified that when he first saw the train 300 to 400 feet away he and Christian were in a position of safety. A witness, William Bond, testified that he was seated in his parked car at the east end of the parking lot. He heard the train 'whistling down the track' as the plaintiffs approached the parking lot. At a point when the train was just about in front of him, Bond said the plaintiffs began to run and he thought the himself, 'Don't try it because the train's too close.' They ran approximately 10 feet or 'two or three steps' when Christian fell on the tracks. By that time the train had nearly reached the crossing.

Both Kittilstad and Simmons testified that the train did not blow its whistle until at about the point of impact. Mr. Bond did not specify the distance but stated that he heard the train come 'whistling down the track' and that it whistled as it came closer. Charles Schmelz, who lived in a trailer near the Galley, testified that he was in the trailer and he heard the train whistle; that he went to his front trailer window and looked out and saw two men, one of whom was on the ground, and they were on the railroad crossing area. Mrs. Vicki Clinkenbeard heard the train whistle from 'far off.' Antone Dowrelio heard a frantic warning-type whistle.

Joseph Murphy, the engineer of the train that struck the men, was proceeding from Roseville to Oakland. Murphy testified that when the train came around the curve approximately one-fourth of a mile from the Dowrelio crossing, he was traveling at 43 miles per hour. He stated that he commenced to blow the train's whistle in a warning blast when the train was one-fourth of a mile in advance of the crossing and that he turned the train's bell on at the same time. There were railroad cars parked on the adjoining tracks. When he cleared the cars on his right side, he saw two people on the crossing approximately 30 feet from the track on which he was traveling. He was not sure if they were aware of his presence. He was sounding the warning blast and then proceeded to give a succession of sharp, loud blasts. When he saw the men crossing in front of the train and saw one man fall, he went into an emergency application of the brakes. At this point he was, according to his estimate, about a car-and-a-half from the crossing and there was no hope of stopping the train.

Antone Dowrelio subleased the present site of the harbor facilities in 1929 from the C & H Sugar Company and built a wharf on the premises. Dowrelio negotiated a lease with Southern Pacific for use of the railroad track crossing and parking lot on the other side of the crossing. The business grew and from about 1947 to 1969 approximately 4,000 to 5,000 people a month used the facilities. Dowrelio estimated that at the time of the trial at least 50 to 75 trains per day passed through the crossing and more than 200 trains per day passed through the crossing during the periods of heavy use. In 1963 the crossing was closed to vehicular traffic after an official of Southern Pacific witnessed a near collision of a train and gasoline truck. The closing was accomplished by means of posts and a chain stretched between the posts. Southern Pacific then relented to allow the passage of emergency and delivery vehicles over the crossing. Whenever it was necessary to allow the passages of such vehicles, Southern Pacific provided a flagman to protect the crossing and vehicle from railroad traffic. At the time of the accident, the harbor complex consisted of a fishing club with approximately 225 members, a restaurant, a boat repair yard, a Sea Scout meeting building and a boat marina. Persons using these facilities had to use the Dowrelio crossing.

Between 1947 and the time of the accident, Southern Pacific repaved the surface three times. Although Dowrelio's occasionally effected minor repairs, the maintenance work on the crossing was performed by and considered to be the responsibility of Southern Pacific. A waitress employed at the restaurant at the time of the accident testified that during the time of her employment there were holes in the asphalt walkway over the crossing which one had to walk around. Kittilstad, who witnessed the accident, stated that at the time of the accident there were potholes in the asphalt and that Christian's foot was caught in one of these holes. Subsequent to this accident another accident occurred involving a woman whose shoe caught in a hole in the asphalt, causing her to trip and fall.

At the time of the accident there were no protective or warning devices at the crossing.

Plaintiffs introduced evidence tending to show that defendant Southern Pacific instituted a regular office procedure whereby files relating to grade crossings were stripped of documents unfavorable to the railroad. A letter dated March 4, 1969, from Burton R. Howard, general claims manager of Southern Pacific, to several claims personnel was introduced into evidence. The letter reads in part: 'I am sure all of you are aware of the special committee which has been functioning under the direction of Messrs. Still and Hoyt in an effort to provide direct communication between all departments and a mutual effort in solving some of the major problems confronting us. ( ) The efforts of this committee in eliminating unnecessary correspondence files which relate to the upgrading of crossing protection have been most successful. The discontinuance of such files, particularly in the office of Mr. H. M. Williamson, will require that you look to your Division Engineer for any desired information as to the status of crossing protection at any given crossing. It is desired that such inquiries be made in person or by telephone, consistent with our program of eliminating as much correspondence as possible in this regard.'

Elden M. Gardner, who had been employed by Southern Pacific from 1958 until 1971, worked in the claims department headed by Howard from 1964 until the time he left the employ of Southern Pacific. One of his primary functions was...