Rayhill v. Southern Pacific Co.

JAMES, J.

Defendant appealed from a judgment awarding damages to the plaintiff on account of the loss of an automobile which was struck by a train of the defendant. Appeal is also taken from an order denying defendant’s motion for a new trial. The evidence is presented by bill of exceptions, and it is claimed that the proof was insufficient to justify the verdict of the jury and that the court should have granted the motion of defendant for judgment of nonsuit. The questions so presented depend for solution upon the proposition as to whether upon the evidence introduced on behalf of the plaintiff or upon the whole evidence, it should be concluded that the plaintiff was guilty of contributory negligence. In our opinion, the case presented is one where the plaintiff, measuring her acts by all of the testimony favorable to her case, failed to use

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such precautions for the safety of her property as is required of a reasonably prudent person under the circumstances shown. The plaintiff’s automobile was wrecked at a point near the town of Claremont and while upon a roadway known as Ramona Avenue, which crosses the tracks of the defendant at right angles. These tracks at that point run in an easterly and westerly direction and in a straight line for several miles on either side of the point of accident. Plaintiff testified that about 1:15 in the afternoon on a “still” day she drove southerly along Ramona Avenue and approached the crossing; that she was driving a four-cylinder automobile and traveling at the rate of approximately ten miles per hour; that she could not see the railroad tracks to the eastward of .the crossing by reason of an orange orchard aligning the right of" way and brush, corn-stalks and sunflowers upon the right of way, until she reached a point about opposite a crossing sign, which was there for the purpose of advising users of the highway of the proximity of the railroad, which sign post, she testified, was “about twelve or thirteen feet from the crossing.” She testified that from the place where she sat in her automobile the front of the machine would project about seven feet ahead of her; that the engine of her automobile made some noise, and that she did not at any point, while coming down Ramona Avenue, stop the automobile to listen for the approach of trains, and that she heard no train approaching, nor did she hear a whistle sounded or bell rung; that when she reached the crossing-post she threw on her emergency brake, without stopping the engine of the automobile, and that she and two young lady passengers who were with her all .jumped from the machine and were not. injured; that the “overhang” of one of the engines of the heavy freight train caught the automobile and demolished it; she testified that this was a very long train of freight-cars; that it was coming on a downgrade at the rate of from fifty to sixty miles an hour, without using steam; that after striking the automobile the train ran by twenty or thirty car-lengths before it stopped; that when she started to stop her automobile the car was about thirteen feet from the track and the front engine about two hundred feet away from her; that the train was about sixty cars long, having attached to it one engine in front and two engines on the rear. As to the ability of a person to see eastward along the track of the railway for a considerable distance while traveling along Ramona Avenue and before the