Todd v. Southern Pac. Co.

• Decision Date: 06 September 1960
• Docket Number: No. 18719,18719
• Citation: 7 Cal.Rptr. 448,184 Cal.App.2d 376
• Court: California Court of Appeals Court of Appeals
• Parties: Jackson TODD, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Henry Galloway, and Otis Smith, Defendants and Respondents.

Page 448

7 Cal.Rptr. 448

184 Cal.App.2d 376

Jackson TODD, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Henry Galloway, and Otis Smith, Defendants and Respondents.

No. 18719.

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

Sept. 6, 1960.

Harold L. Strom, Oakland, Pelton, Gunther, Durney & Gudmundson, San Francisco, for appellant.

Bledsoe, Smith, Cathcart, Johnson & Phelps, Robert A. Seligson, San Francisco, for respondents.

DUNIWAY, Justice.

This is another of the many cases that have come before the appellate courts in which an unsuccessful plaintiff, injured in a collision of moving vehicles at an intersection, claims error in refusing to instruct the jury upon the doctrine of last clear chance. Counsel asserts 'that the evidence in this case virtually cries out for the application of the last clear chance doctrine.' Our examination of the record, in the light of the controlling authorities, persuades us that the evidence makes no such cry; the cry is merely that of counsel.

The doctrine was elaborately reviewed by the Supreme Court in Brandelius v. City & County of S. F., 47 Cal.2d 729, 306 P.2d 432, which has become the leading case upon the subject. Its restatement of the applicable formula appears at page 743 of the opinion and we do not repeat it here. We note, however, that the opinion reiterates and emphasizes certain considerations that control this case. '[T]he time element is the all important factor.' 47 Cal.2d at page 738, 306 P.2d at page 438. '[B]ut defendant is not liable under the doctrine unless after the time that he is chargeable with the required knowledge of the injured person's inability to escape, he 'has the last clear chance to avoid the accident by exercising ordinary care.'' 47 Cal.2d page 741, 306 P.2d at page 438. This is but another way of saying that the defendant must have not only a last chance, but a clear chance to avoid the accident. Rodabaugh v. Tekus, 39 Cal.2d 290, 296, 297, 246 P.2d 663; Doran v. City & County of San Francisco, 44 Cal.2d 477, 487, 283 P.2d 1.

These rules are the basis for the oft-repeated statements of our courts that ordinarily the doctrine cannot be applied to an intersection case involving a collision between two moving vehicles, and that the doctrine 'never meant a splitting of seconds when emergencies arise' (Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114, 121, 265 P. 517, 519, quoted in our recent decision in Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 2 Cal.Rptr. 319). The earlier cases are collected and discussed at length in Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528, 129 P.2d 503. Other late cases restating and applying one or both of these principles are: Hildebrand v. Los Angeles Junction Ry. Co., 53 Cal.2d 826, 3 Cal.Rptr. 313; Hall v. Atchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80, 312 P.2d 739; Clarida v. Aguirre, 156 Cal.App.2d 112, 319 P.2d 20; Nember v. Atchison, 112, 319 P.2d 20; Nemer v. Atchison, 319 P.2d 770; Barcelone v. Melani, 156 Cal.App.2d 631, 320 P.2d 303; Holman v. Viko, 161 Cal.App.2d 87, 326 P.2d 551; Hickambottom v. Cooper Transp. Co., 163 Cal.App.2d 489, 329 P.2d 609; Miller v. Atchison, T. & S. F. Ry. Co., 166 Cal.App.2d 160, 332 P.2d 746.

We recognize that the doctrine is a 'humanitarian' one (Brandelius v. City & County of S. F., supra, 47 Cal.2d 729, 739, 306 P.2d 432), in that it relieves the plaintiff from the otherwise adverse consequences of his own negligence. There is always a tendency to stretch such a doctrine so as to bring within it cases that would once have been excluded from its operation. But we think that to apply it here would stretch it to the breaking point and, as we said in Kowalski, supra, 'would mean that there could be no intersection collisions to which the doctrine would not apply, and would completely do away with the defense of contributory negligence in such cases' (177 Cal.App.2d 528, 2 Cal.Rptr. 319, 322).

Viewed most favorably to the contention that the doctrine is applicable (Warren v. Ubungen, 177 Cal.App.2d 605. 2 Cal.Rptr 411), the evidence discloses the following: As frequently happens, appellant suffered a retrograde amnesia at the time of trial, and had no memory of the events of the day of the accident, in exchange for which disability he is given the benefit of the presumption that he acted with due care. The result is that the only testimony of eyewitnesses comes from employees of the defendant.

The accident occurred on Madison Street, in Oakland, at its intersection with certain tracks of respondent Southern Pacific Company ('S. P.'). Appellant was driving a Ford truck north on Madison, which runs north and south. The time was 4:30 in the afternoon, and there is no claim that visibility was poor. As he approached the intersection, appellant had on his right an open field, across which he could see the S. P. tracks for a considerable distance. Also on his right, and about 150 feet before the first track crosses Madison, there is a round, highway type railroad crossing sign. The first two tracks ahead of appellant were Santa Fe tracks, not in use at the time. They occupy about 18 feet, and the northernmost rail of these tracks is about 40 feet south of the first S. P. rail. The first S. P. rail was thus about 208 feet north of the crossing sign. Also on the right, and about 20 feet south of the first S. P. rail is the usual white 'crossbuck' type of railroad crossing sign.

The first S. P. track, ahead of appellant was a 'drill track,' five feet in width, used for temporary storage of box cars. On appellant's right, one box car was on this track. It was about 42 feet long, and its westerly end was about 10 feet east of the east line of Madison. On his left, a string of four similar cars was on the drill track, with the easterly end about 15 feet west of the west line of Madison. Appellant's view to the left was fully obstructed by buildings and then partially obstructed by a storage yard until he reached a point about 95 feet south of the drill track, at which point he had a clear view of the S. P. tracks to his left, except as it was obstructed by the four box cars. The second S. P. track, eight and one half feet further north and five feet wide, was the main eastbound track of S. P. The next, ten and one quarter feet north of it, was the main westbound track. Still farther north was another drill track, not here involved.

As appellant proceeded, there was approaching from his right, on the westbound track, a single diesel engine of the S. P. (referred to as 'the engine'). It was 55 feet long and weighed 250,000 pounds. Its headlinghts were on, but its bell was not ringing and it did not sound its whistle. Its cab was at least 10 feet back from its front end, so that the engineer, who was on the right, could not see appellant, but the fireman, who was on the left, could and did. The throttle, the principal braking controls, and the whistle control were next to the engineer. At the same time, there was approaching from appellant's left on the eastbound track a 66-car freight train (referred to as 'the train'). It was sounding its bell and its headlights were on, but it did not whistle as it approached Madison Street.

Just as the cab of appellant's truck became visible to the fireman of the engine, when the truck appeared from behind the end of the single freight car on the drill track to appellant's right, the fireman saw that appellant was looking toward his left, in the direction of the train, and not toward the engine. The front of the truck was then less than 30 feet from a point at which it would, in its forward progress, intersect the path of the oncoming engine. The fireman yelled 'hold it' (which means to apply the emergency brake) and the engineer did so. The left front pilotboard of the engine struck the right front of the truck, near the motor, and knocked it back onto the eastbound track, where it was struck by the train and thrown still farther south, against the crossbuck. Fortunately, appellant was thrown out of the truck by the first collision and clear of the train, so that he was not personally involved in the second collision.

Appellant does not assert that all of the elements of the last clear chance doctrine were present before his truck appeared from behind the box car and the fireman saw that he was still proceeding and looking the other way. It was at that point, for the first time, that defendant 'knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom.' Brandelius v. City & County of S. F., supra, 47 Cal.2d 729, 743, 306 P.2d 432, 441. Until then, the engine crew had a right to assume that appellant would stop and let both the train and the engine go by. Nemer v. Atchison, T. & S. F. Ry. Co., 156 Cal.App.2d 445, 451, 452, 319 P.2d 770, and cases there cited; Powell v. Pacific Electric Railway Co., 35 Cal.2d 40, 46-47, 216 P.2d 448.

Appellant asserts that after that time, the engine crew still had a last clear chance to avoid the accident, either by stopping the engine, or by slowing it and sounding a warning which would have alerted appellant so that he would have speeded up and passed ahead of the engine. It is apparent that if, instead of speeding up, appellant had tried to stop, he would almost certainly have been struck by the train. We think that it is sheer speculation that he would have done the former rather than the latter. The record contains no evidence from which a jury could infer that appellant could have stopped short of the eastbound track, which was only between eight and eleven feet or so from the nose of his truck, not allowing for the 'overhang' of the train beyond the rails. There is no evidence as to the length or weight of the truck or the condition of the truck's brakes, as to the distance in which it could have been stopped...