Pacheco v. Southern Pacific Co.

NOURSE, P. J.

Plaintiffs sued as heirs of Antonio Pacheco, deceased, for damages for his death caused in a collision with a train operated by defendants. At the close of plaintiffs’ ease a nonsuit was granted. Plaintiffs appeal upon typewritten transcripts.

Deceased was operating an automobile truck southerly on Grove Street at the intersection with Seventh Street in the city of Oakland. Defendants were operating an electric suburban train westerly on Seventh. Seventh Street is 60 feet wide. Grove is 45 feet wide. Both streets were paved with asphalt and were practically level. The day was clear and the streets were dry. At the point of collision the railway company had maintained a double track system for more than fifty years, operating thereon both steam and electric trains. The approach of these trains was visible for more than a mile easterly of the intersection. Before the collision the city authorities had made Seventh Street an arterial and red “stop” signs were maintained at the appropriate corners. As deceased approached the intersection he stopped or slowed down before entering the arterial, but from that point on continued without stopping and without change of speed directly in front of the approaching train, which collided with his truck and carried him about 350 feet before the train was brought to a stop.

The motion for nonsuit was based upon two grounds—• failure to prove negligence on the part of the defendants, and proof of contributory negligence on the part of the deceased. The order granting the motion was sound upon both grounds. There was no evidence that the train was being operated at a negligent rate of speed, that the equipment was defective in any respect, or that the engineer was incompetent or careless in any manner. The evidence

[612]

disclosed that the whistle and bell of the train were operated from a distance of a block or more from the intersection.

The evidence of contributory negligence brings the case squarely within the rule of

Koster

v.

Southern Pac. Co.,

207 Cal. 753, 761 [279 Pac. 788], and