Munson v. Friedman

WARNS, J. pro tem.

*

This is an appeal from a judgment entered after a jury verdict in favor of the estate of" Richard Arthur Munson and Alda Anne Munson against the estate of Francis Katheiser in an action for wrongful death, and from an order denying a motion for judgment notwithstanding the verdict.

The Munsons were killed when an automobile driven by Francis Katheiser, in which the Munsons were guests, collided with a freight train. All of the occupants of the automobile were killed. The sole question on this appeal is the sufficiency of the evidence to sustain an implied finding of the jury that Francis Katheiser was guilty of serious and wilful misconduct in the manner in which he drove the automobile.

The accident occurred at 1:28 a. m. on April 29, 1951, at the intersection of the Santa Fe Railroad tracks and Monte Vista Road in Stanislaus County. Monte Vista Road runs east and west. The Santa Fe tracks, at the point where they intersect Monte Vista Road, run in a northwest to southeast direction. The tracks bisect the road at about a 45-degree angle. The railroad crossing is unguarded except for a reflector warning sign approximately 450 feet east of the intersection and a crossed-bars railroad sign at the tracks. The road bed is elevated. Some 200 feet east of the tracks Storey Road intersects Monte Vista Road. Buildings and trees on the corner of the two streets tend to obscure the visibility to the north of a person driving west on Monte Vista Road until

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he is about 250 feet from the tracks. From this point one could see ". . . down the tracks here, clear down by the next cross-over, ’ ’ or, in other words, the next street that crosses the railroad.

Francis Katheiser, his wife Gladys, his sister Alda Anne Munson and her husband Richard Arthur had spent the evening at a friend’s home. They left at the end of their visit in Francis’ new Mercury automobile. It was stipulated at the trial that Francis was in full possession of his faculties when the group left. In order for them to proceed to their respective homes it was necessary for them to cross the railroad tracks. Francis Katheiser was familiar with the area and the crossing. Approximately 100 feet from the intersection 60 feet of skid marks were laid down. The automobile collided with the right front end of the engine of the freight train which was traveling in a southerly direction and was wedged in the engine. The car was carried about 2,250 feet before the train which was composed of a three-unit diesel engine and 80 ears could be stopped. All the occupants of the car were thrown from it, and all were killed.