Lugo v. Atchison, T. & SF Ry. Co.

128 Cal.App.2d 402 (1954) HELEN LUGO et al., Plaintiffs; FRANCES SANDOVAL et al., Appellants,

v.

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY (a Corporation) et al., Respondents.

Civ. No. 4868. California Court of Appeals. Fourth Dist.

Oct. 27, 1954. Sherwood Roberts and Daubney & Stevens for Appellants.

Robert W. Walker, William F. Brooks and Luce, Forward, Kunzel & Scripps for Respondents.

BARNARD, P. J.

This is a damage action arising from a collision between a locomotive and a truck.

The accident occurred at about 11:30 a. m. on June 6, 1952, at a point a mile or two north of Oceanside, where a black-top road leading easterly from Highway 101 crossed the railroad tracks. This road was formerly the main access from the highway to Rancho Santa Marguerita, now Camp Pendleton. About 1943, the Marines established a new entrance to Camp Pendleton and placed a locked gate across this old road, just east of the tracks. Thereafter, this old road was used occasionally by certain lessees and permittees who were given keys to the gate by the Marine officials. In 1950, the defendant Santa Fe and the Navy, on behalf of the Marine Corps, entered into a contract requiring the "Government" to erect a gate to prevent the use of this crossing by the public, and to give the railroad 24 hours notice of any proposed use so that the crossing could be flagged, and further providing that the government was not to permit others to use the crossing without the written permission of the railroad. However, the road was used at times, without such notice being given. No notice was given on the occasion here involved.

On this occasion Roy Witman, who had a permit to run sheep in this area and had been given a key for this gate, had bought a load of hay from one Riggs. Earlier that day Witman escorted this truck through the main entrance to Camp Pendleton and to a point about 200 yards east of this locked gate. The truck was towing two trailers, the whole outfit being about 60 feet long, and was driven by Edward Lugo. He was accompanied by Baltazar Sandoval who was apparently his guest. After the hay was unloaded Witman offered to let them through this gate, since the outfit was too long to turn around in the space available, and opened the gate. He had in the past let several such trucks through the gate. There was a line of trees just north of the gate, extending along the east side of the tracks for some 200 to 250 yards, which obscured the view to the north. The truck came out of the gate, traveling about 3 to 5 miles an hour, and when it reached the main line track it was struck by a train traveling from Los Angeles to San Diego. Lugo