Whinery v. Southern Pac. Co.

• Court: California Court of Appeals
• Writing for the Court: ELKINGTON; MOLINARI, P.J., and SIMS
• Citation: Whinery v. Southern Pac. Co., 83 Cal.Rptr. 333, 3 Cal.App.3d 941 (Cal. App. 1970)
• Decision Date: 09 January 1970
• Parties: Rosalee WHINERY, Kenneth Whinery, a minor, Julie Whinery, a minor, and through their Guardian Ad Litem, Rosalee Whinery, Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 25686.

Page 333

83 Cal.Rptr. 333

3 Cal.App.3d 941

Rosalee WHINERY, Kenneth Whinery, a minor, Julie Whinery, a minor, and through their Guardian Ad Litem, Rosalee Whinery, Plaintiffs and Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 25686.

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

Jan. 9, 1970.

Rehearing Granted March 5, 1970.

Bostwick & Rowe, Everett P. Rowe, San Jose, for appellants.

Hoge, Fenton, Jones & Appel, Edwin D. Jones, Jr., San Jose, for respondent.

ELKINGTON, Associate Justice.

Plaintiffs, the widow and three children of Albert Whinery, deceased, have appealed from a judgment, based on a jury verdict, and from an order denying a motion for judgment notwithstanding the verdict, in an action brought by them against defendant Southern Pacific Company for damages for the wrongful death of the deceased.

The material facts are not in dispute. Deceased was a passenger in his employer's truck which was being driven by a fellow employee. While crossing railroad tracks in the City of Gilroy the truck was struck by a train operated by the Southern Pacific Company. Deceased died instantly in the collision. The train was traveling at a speed of 55 miles per hour. An ordinance of the City of Gilroy provided that it was unlawful for a railroad train to travel at a speed over 35 miles per hour within the corporate limits of that city. No legal excuse was offered by the railroad company for the speed violation.

At the close of the trial plaintiffs moved that the jury be directed to return a verdict in their favor on the issue of liability. The motion was denied. The court then instructed the jury, inter alia, that the negligence, if any, of the truck's driver could not be imputed to deceased, that as a matter of law deceased was not guilty of contributory negligence, and that since the defendant railroad company had operated its train in excess of the permitted speed it was guilty of negligence per se. The jury were then instructed that the violation of the ordinance was of no consequence unless they found it to be a proximate cause of the death of decedent. The jury, as we have indicated, returned a defense verdict.

Plaintiffs correctly point out that the subject ordinance of the City of Gilroy was obviously designed to prevent railroad trains from colliding with persons or vehicles crossing the railroad right-of-way. They contend, as a matter of law, that defendant's negligence in violating the ordinance was a proximate cause of the accident and of decedent's death. This being so, they insist that no factual issue remained on the question of liability, and that therefore the court erred in not granting their motion for a directed verdict on that issue. In support of their argument they cite the case of Valerio v. Jahura (1961) 191 Cal.App.2d 159, 12 Cal.Rptr. 296.

The rule which we consider applicable to this case appears to have been first stated in Norman v. Virginia-Pocahontas Coal Co. (1910), 68 W.Va. 405, 69 S.E. 857 (overruled on unrelated point by Pitzer v. M.D. Tomkies & Sons (1951), 136 W.Va. 268, 67 S.E.2d 437, 442). There, in disregard of a statute prohibiting boys under 14 years of age from working in coal mines, such a boy was so employed. He later was injured in the course of his employment. In an action based upon the accident the company contended that the evidence showed no causative relation between its violation of the statute and the boy's injuries. The court held otherwise, stating (p. 858):

"The point is one of first instance with us. We adopt the view that seems consonant with reason. Briefly stated, it is this: The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury. The true question to be determined in an action based upon a failure to obey a statute like the one under consideration is: Did the unlawful employment cause the injury? The trial of the case must be guided by this question. If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the non-observance of the law. * * *" (Emphasis added.)

Citing Norman v. Virginia-Pocahontas Coal Co., supra, the editors of American Jurisprudence (and its predecessor work, Ruling Case Law) thereafter phrased the rule in like manner: "If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law. * * *" (38 Am.Jur., Negligence, § 166, p. 838.) The rule as announced by Norman v. Virginia-Pocahontas Coal Co., supra, 69 S.E. 857, and American Jurisprudence, has been followed by Franklin v. Houston Electric Co. (1926), Tex.Civ.App., 286 S.W. 578, 580; Tarr v. Keller Lumber & Construction Co. (1928), 106 W.Va. 99, 144 S.E. 881, 883, 60 A.L.R. 570; Janof v. Newsom (1931) 60 App.D.C. 291, 53 F.2d 149, 152; Baltimore & O.R. Co. v. Green (1943, 4th Cir.) 136 F.2d 88, 91; Van Pool v. Industrial Commission (1954), 267 Wis. 292, 64 N.W.2d 813, 814-815; Tagenby v. Altoona Aviation Corporation (1967, W.D.Pa.) 268...