Dunlap v. Pacific Electric Railway Co.

WHITE, J.,

pro tem.

This is an appeal by plaintiff from a judgment entered upon a directed verdict. Plaihtiff is the minor daughter of Gussie Dee Dunlap, whose death ensued from a collision between an automobile in which deceased was riding as a passenger and an electrically propelled train of freight ears and caboose operated by cjlefendants Pacific Electric Railway Company and its employees.

The fatal accident occurred about 11 o’clock on a very foggy night on Truck Boulevard at Dominguez Junction, in Los Angeles County, on the road to Long Beach. The defendant railway company operates a line of railway from Long Beach to Los Angeles along its private right of way. and over several highway crossings, including the highway crossing here in question. It was testified at the trial tíat the wigwag signals for trains northbound, the direction in which the train was traveling at the time of the accident, start operating when a train is either 1938 feet from the crossing or a distance of 625 feet from the crossing. These signáis are automatically operated by the trolley’s coming in contact with a brush installed on the trolley wire. The signals cease

[475]

to operate when the engine or head car reaches a point 108 feet north of the center of the highway at the intersection. The automobile in which the deceased was riding was traveling in a southerly direction towards Long Beach, and ran into the side of the train, the impact throwing the decedent out of the automobile and injuring her, from the results of which injuries .she died. At the trial plaintiff sought to establish that the automobile collided with one of the box cars, while the defendant introduced testimony that the automobile came into collision with the rear end of the caboose or last car of the train, and that part of the automobile bumper was removed from the rear steps of the caboose. It was also testified that the step on the rear end of the caboose was bent.

The driver of the automobile testified that visibility was very poor; that at times he could see about fifteen or twenty feet ahead with his lights, and at times the fog was so thick that it just rolled in and he could barely see at all; that his best visibility was between fifteen and twenty feet; that with his headlights he could not see more than fifteen or twenty feet ahead. The heaviness and thickness of the fog and the very poor visibility were conceded by all the witnesses at the trial. The driver of the automobile further testified that the first warning he had that any train was in front of him was when his headlights revealed to him the sight of a box car; that at no time did he see any lights or hear any wigwag working. Other witnesses gave similar testimony. The motorman gave positive testimony that he did blow the train whistle several times before reaching the crossing where the accident happened. He also testified that there is what is called a “home board” about five hundred feet south of the crossing, which is a signal that controls the movements of trains over the Southern Pacific tracks at this junction; that before he proceeded over this Southern Pacific crossing he blew one long blast of the whistle to attract the attention of the to'werman, and that when the latter gave the motorman a green signal to proceed he acknowledged it with two short blasts of the whistle. The motorman’s testimony that he blew the whistle, rang the bell, and that the wigwag was working, was corroborated by the testimony of other witnesses.