Miller v. Northwestern Pacific Railroad

DRAPER, P. J.

Homer Miller was killed in a collision of his automobile with a train. The widow and four surviving children recovered judgment upon jury verdict against the railroad and its engineer. Defendants appeal.

The collision occurred October 30, 1956. Decedent was driving east on Ford Eoad. The train was southbound. A freight train was stopped on a siding west of the main line, some 200-250 feet north of the Ford Eoad crossing. The only surviving eyewitness to the collision is the engineer. He first saw the automobile when it was on the track 10-12 feet from the train. The ear was moving but he could not estimate its speed. The driver was looking straight ahead. The jury viewed the scene of the accident.

The appeal is based wholly on claimed error in instructions given and refused.

The trial court properly instructed the jury upon the presumption that decedent exercised due care. Appellants do not attack this instruction, but argue that the giving of

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it emphasizes the error of the trial court in refusing the instructions proposed by them dealing with speed of the automobile. Appellants’ proposed instruction 34 quoted the code (Yeh. Code §§ 511, 511, subd. (a) ; now §§ 22351-22352) to the effect that a speed not in excess of the prima facie limit "is lawful unless clearly proved to be in violation” of the basic speed law. This instruction correctly stated the prima facie limit at an obstructed grade crossing to be 15 miles per hour. However, appellants proposed that this instruction be immediately followed by number 35, in the language of BAJI 149, stating that if the driver violated the quoted section "a presumption arises that he was negligent,” but that the presumption "may be overcome by other evidence” showing that his conduct was excusable or justifiable, and detailing the evidence necessary to overcome the presumption of negligence. But this 15-mile regulation, by its terms as well as by separate express provision of the code (Veh. Code, § 513, now § 40831), is only a prima facie limit. It is established that speed in excess of a mere prima facie limit is not negligence as a matter of law, and that the burden is upon the party asserting negligence to establish as a fact that such speed was negligent