Christman v. Southern Pacific Co.

CONREY, P. J.

Action to recover damages for personal injuries which the plaintiff received by reason, of a collision between a motor truck operated by the plaintiff and a gasoline motor car operated'by the defendant. At the close of the plaintiff’s evidence defendant moved for a nonsuit on the ground that the testimony showed that the plaintiff was guilty of contributory negligence which was the proximate cause of the accident. This motion was granted and the plaintiff appeals from the judgment.

Stating the facts as favorably to the plaintiff as they can be under the evidence, they are as f ollows: On the seventh day of February, 1914, the defendant was a common carrier of passengers and freight for hire, and operating a line of steam railroad carrying passengers and freight and running from the city of Los Angeles through and east of Norwalk in Los Angeles County. At the town of Norwalk the railroad track runs east and west across a certain public highway running north and south. At about noon of that day the plaintiff was driving an auto truck along the highway

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and was moving toward the railroad track, in a southerly-direction. At the same time the motor car of the defendant was approaching the highway crossing from the west'. Plaintiff approached the railroad track while traveling at a rate of eight or ten miles an hour, and the motor car was traveling at the rate of forty-five or fifty miles an hour. There was a blacksmith-shop bn the west side of the highway, located about thirty-five feet from the railroad right of way. "When the plaintiff passed the blacksmith-shop he first looked east and then looked toward the west. Looking toward the west he saw the gasoline motor car, which was a passenger-ear of the defendant, approaching the crossing. When he first saw the motor car he was about thirty feet from the crossing. Immediately he put on his brakes, with the result that the auto truck stopped so that its radiator was just óver the nearest rail of the railroad track. At that point it was struck by the motor ear. Prior to the day in question the plaintiff had driven over this crossing eight or ten times and knew that the railroad track was there. It was a fact, and' the plaintiff knew it to be a fact, that when driving his motor truck at the speed at which he then was driving he could not stop within less than thirty-five or forty feet. The plaintiff was aware of the fact not only that there was a railroad track there, but knew also that trains were being operated over it.