Boellaard v. Crabbe

WARD, J.

This is an appeal from a judgment of non-suit, granted in an action by plaintiff minors, by the guardian of their estates, to recover damages for the wrongful déath of the parents of the minors, killed when their automobile was struck at a street crossing in Redwood City by a train of the defendant Southern Pacific Company, which was being operated by Witte Hoogendyk and John L. Crabbe, as engineer and fireman respectively. The driver of the automobile had slackened speed at the crossing to allow a northbound train to pass, and the decedents were killed when the car was driven across the track over which this train had just passed, and directly into the path of a southbound train.

The court granted the nonsuit upon the ground (1) that there was no evidence of negligence on the part of the defendants proximately causing the injury; (2) that if there was such negligence “I find that contributory negligence, as

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a matter of law, was imputed to the other party in the car for all the reasons advanced by counsel for the defendant.” Plaintiffs appeal from the judgment and from the order denying their motion for a new trial.

In support of the theory of negligence on the part of respondents, appellants refer to an ordinance of the city of Redwood City which they claim prohibits the operation of the train involved herein at a speed exceeding forty-five miles an hour, and they contend that, regardless of the ordinance, the record shows respondents were guilty of negligence as a matter of law in operating the train at an excessive speed at the time and place of the accident.

There is some evidence that at the time of the collision, the train was traveling at seventy miles an hour. There is also some evidence from which an inference might be drawn that no whistle warning was sounded by the southbound train on approaching the crossing; that the two-train flashing red light did not operate; that the wigwag signal installation was in violation of an order of the Railroad Commission, and that all of the signals were inadequate to notify those intending to cross the track of the approach of this particular train. The weight of such evidence is not for this court or the trial court to pass upon. It involved questions of fact which should have been presented to the jury unless contributory negligence as a matter of law was established.