Sheets v. Southern Pacific Co.

SHENK, J.

This is the second appeal in this case. The action was brought to recover damages for personal injuries sustained by the plaintiff when a freight-car of the defendant railroad company collided with the gasoline truck which the plaintiff was driving while the train crew was making a “flying switch” at an intersection. On the first trial the jury brought in a verdict of $7,500 for the plain

[410]

tiff. A motion for a new trial was granted. On appeal the order granting a new trial was affirmed.

(Sheets

v.

Southern Pacific Co.,

212 Cal. 509 [299 Pac. 71].) On the second trial the jury also returned a verdict for the plaintiff in the sum of $7,500. A motion for a new trial was denied. The defendants now appeal from the judgment entered on that verdict. The opinion on the former appeal is referred to for a more complete statement of the facts. It was contended on that appeal that on the record the plaintiff was guilty of contributory negligence as matter of law. It appeared that the plaintiff had stopped his truck at the appropriate distance from the railroad tracks; that the bralceman who had signaled the plaintiff to stop left the crossing and walked in the direction of the locomotive, and it was then that the plaintiff moved his truck forward; that the plaintiff depended to a certain extent on the action of the bralceman and would not have attempted to cross had the latter remained on the crossing. On those and other facts appearing in the. former record the rule was applied that a railroad company will not be permitted to encourage a relaxation of vigilance by assurances that the danger had been minimized and at the same time hold persons to the same

quantum

of care as if no safety measure (here the signal of the brakeman to the plaintiff to stop), had been adopted. Decisions were referred to “tending to indicate that when a plaintiff is thrown off his guard by the conduct of the defendant or is lulled thereby into a sense of security, so that he goes upon a crossing, as the plaintiff here did, he is not chargeable with contributory negligence as matter of law. . . . The fact that the brakeman left the crossing after the engine had passed and before the ‘shunted’ car had reached the crossing may well have led the plaintiff, acting as a reasonably prudent man, to assume that the danger had passed, thus causing him to relax his diligence. As stated in the last ease above cited