Southern Pacific Co. v. Souza, 12153.

• Decision Date: 30 January 1950
• Docket Number: No. 12153.,12153.
• Parties: SOUTHERN PACIFIC CO. v. SOUZA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.2d 691 (1950)

SOUTHERN PACIFIC CO. v. SOUZA et al.

No. 12153.

United States Court of Appeals Ninth Circuit.

January 30, 1950.

Arthur B. Dunne, Dunne & Dunne, San Francisco, Cal., for appellant.

Clifton Hildebrand, James A. Myers, D. W. Brobst, Oakland, Cal., for appellees.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

The Southern Pacific Company appeals from three judgments rendered against it by the district court. The three causes of action grew out of a crossing collision between a railroad locomotive and an automobile. The separate actions were consolidated for trial. In these actions the plaintiffs were John Souza, the driver of the automobile; the survivors of Antonio Souza and of Edward Souza, both of whom were passengers in the automobile and were killed as the result of the collision. Federal jurisdiction rests on diversity of citizenship.

Appellant's principal contention is that the driver of the automobile, appellee John Souza, was contributorily negligent as a matter law. The evidence concerning the circumstances of the accident was highly contradictory. Much of the testimony given in behalf of appellees was impeached by alleged prior inconsistent statements of the witnesses. However, the credibility of witnesses is for the determination of the jury. Accepting the testimony and the inferences therefrom in the light most favorable to appellees and disregarding contradictory testimony, the jury could have found that the facts were somewhat as follows:

Appellee, John Souza, on October 11, 1945, at about 9:00 a.m. was driving his 1941 Ford Coupe along Beckwith Road about two miles north of Modesto, California. Passengers were his father, Antonio, and his brother, Edward. As John approached the crossing of the Southern Pacific main line (single) track he began to slow down until at 60 feet from the track his speed was approximately 15 miles per hour. At about 20 feet from the track he came to a complete stop. Beckwith Road intersects the track at an angle of 45 degrees so that the automobile and its occupants were halfway facing down the track to the right or southeast. Appellee was familiar with the crossing having traversed it many times. The day was sunny and there were no physical objects to obstruct a clear view down the straight track in either direction, but there was a shallow layer of light haze or mist hovering above the ground at a height of from 5 to 15 feet which impaired horizontal visibility so that John could see down the track a distance of only about 600 feet. His ability to distinguish objects at that distance when looking down the track to the right may have been lessened by the effect of the sun's rays which shone upon the windshield of the automobile.

After stopping appellee looked to the right for approximately two seconds and then to the left for about the same time. Having seen or heard no train in either direction, he shifted into low and started across the track without looking again to the right. While the car was astraddle the track he glanced to the right and saw a locomotive bearing down on him from that direction but was unable to clear the track in time to avoid the collision which killed his father and brother, injured him, and demolished his car.

The locomotive was traveling "light" at a speed of 65 or 70 miles per hour. Its front was painted silver for higher visibility but this coloration might have had a reverse effect because of the haze or mist. Neither whistle nor bell were sounded to signal the approach to the crossing. At the speed the train was traveling it would take approximately six seconds to traverse the 600 foot range of visibility.

So much for what the jury might have concluded.

Appellant argues that the California courts have established definite standards of care for highway travelers at railroad crossings and that appellee's own testimony shows that he failed to measure up to those standards and was therefore contributorily negligent as a matter of law. Many of the earlier California decisions cited by appellant would seem to sustain this argument.¹ However, the more recent decisions of the courts of California, although they have not expressly overruled the old cases, show a definite policy trend away from the "crystallized fact" cases and favor making the standard of care a question for the determination of the jury.² Several California decisions have held on similar fact situations that whether or not the driver's choice of a place to look and his failure to look a second time constituted negligence were questions of fact for the jury.³

The cases cited in footnote 3 might possibly be distinguished on the ground that in each of those cases there was something (a bad road or a train on the left) to divert the driver's attention and excuse his failure to look again in the direction from which the train came. However, in the instant case the close proximity in time and space between the "look" and the collision seems to leave no room for such a distinction. We are of the opinion that the California cases require an affirmance as against the defense of contributory negligence. That being so we need not consider the contention that the trial court erred in refusing to submit to the jury the question of joint venture for the purpose of imputing the driver's alleged negligence to his brother.

Appellant's remaining contentions concern the instructions. It is urged that the trial court erred in instructing the jury to the effect that a driver who is himself exercising reasonable care has a right to anticipate ordinary care and caution on the part of the train crew. Many cases are cited to support the proposition that such a charge is not the law of California with respect to railroad crossings. We think that whatever error or ambiguity there might have been in the instruction was fully cured by the one which followed.⁴ It is elementary that instructions must be considered as a whole. Even if a single instruction is erroneous, it does not call for reversal if it is cured by a subsequent charge or by a consideration...