Hoffart v. Southern Pacific Co.

TUTTLE, J.

This is an action brought by plaintiffs to recover damages arising out of injuries which resulted in the death of Melehoir V. Hoffart. Defendant Honig filed a cross-complaint to recover damages from the Southern Pacific Company, arising out of the same accident, and as to this cause of action, a nonsuit was granted. The jury denied damages as to defendant Southern Pacific Company, but awarded plaintiffs the sum of $4,486.25 against defendant John Honig. A new trial was granted as to defendant Honig, on the sole issue of damages. The latter now appeals from the judgment on nonsuit entered against him on his cross-complaint, and from the order granting the motion for new trial. Plaintiffs appeal from the judgment in favor of the Southern Pacific Company.

On February 12, 1937, a collision between a train and a truck took place at a railroad crossing located approximately one-half mile northwest of the town of Yolo, in Yolo County. Melehoir V. Hoffart, on account of whose death the action was brought, was riding in the truck driven and "owned by defendant John Honig, which, while being operated in a general southerly direction on a county road known as the old Yolo-Zamora Highway, was struck by a train of defendant Southern Pacific Company. The complaint joined the truck driver John Honig and Southern Pacific Company as defendants, and charged both of these defendants with negligence in their respective operation of the truck and train. In the complaint it was alleged that the deceased was riding in the truck as a passenger. Subsequent to the filing of the complaint, and after the deposition of defendant Honig was taken, plaintiffs obtained leave to file an amendment to the complaint, directed against defendant John Honig, alone, and charging him with wilful misconduct in the operation of his truck at the time of the accident.

Taking up first, the appeal of plaintiffs from that portion of the judgment which denies them a recovery against defendant Southern Pacific Company, it is based solely upon alleged error in giving, modifying and refusing instructions.

It should be borne in mind that in discussing these instructions we are considering an attack by the surviving heirs

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of the deceased guest or passenger, and the law pertaining to the duty of a guest or passenger under the circumstances. In this connection a further reference to the facts and the evidence may serve as a background for a more intelligent view of the legal questions which arise. The two men were seated in the cab of the truck, and were driving along a county road which runs southerly in a straight line, intersecting the track at an angle of forty degrees. The train was approaching from the north, so that both train and truck were converging upon the crossing, southward bound. The view of the track in the direction in which the train approached was absolutely unobstructed for at least one thousand feet. The deceased was sitting on the side of the cab next to the track. The windows and windshield of the truck were clear. The time of the accident was 10:45 in the morning. There is a slight incline approaching the grade crossing. Driver Honig gives the following explanation of the accident: He knew that the tracks were there; the visibility was good; his truck was equipped with four-wheel brakes, in good condition. When the truck was about three hundred feet from the crossing they both stopped talking and were “looking for a train”, and witness did that continuously until he reached the crossing; the deceased was also looking in both directions at a point one hundred fifty feet from the crossing, (quoting from the record) :