Stefanich v. Payne

WASTE, P. J.

This is an action for damages caused by a freight-car of the defendant running into and damaging an autotruck belonging to the plaintiff. The case was tried by the court without a jury. It found that the accident was caused solely and alone by the contributory negligence and want of care of the driver,of the truck; that he care

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lessly and negligently attempted to cross the tracks without looking or listening for approaching cars, which were in plain view, and that if he had looked he would and could have seen the approaching cars in ample time to have stopped the truck and prevented the accident. Judgment was entered in favor of the defendant, from which this appeal is taken.

The facts are not disputed. The accident happened at a point where some sixteen main line and side tracks of the defendant railroad company cross Eldorado Street, in the city of Fresno. By ordinance of the city the railroad was required to keep a flagman at this crossing, but at the time of the accident the flagman was absent from his place of duty. In the evening of the 10th of May, 1919, a loaded autotruck belonging to the plaintiff was driven by one Jack Walton along Eldorado Street, going east. He reached the railroad crossing, noticed the absence of the flagman, but drove slowly across several .tracks, looking, as he testified, in all directions. When he had reached and was on or about the sixth track from the west he saw some freight-cars being shunted, or kicked, in a southerly direction along several of the railroad tracks immediately in front of him. On seeing these cars he stopped his truck in order that they might pass. Five other cars had been shunted down the track upon which Walton stopped, by the locomotive, which was some five hundred feet away from and to Walton’s left. These cars moved slowly, at the rate of about three or four miles an hour, and bore down directly on the truck. Walton testified that he did not notice their approach until they were within about forty feet of him, when his attention was called to them by a passer-by. When he saw the approaching cars Walton attempted to move his truck from off the track in front of them, but in his hurry and excitement he killed his engine, and, to save himself from injury, leaped from the truck, which was demolished by the collision.

There was no brakeman or other person upon the cars as they neared the place where Walton’s truck stood. No bell was rung or whistle sounded to give warning of their approach. A switchman of the defendant had dropped off the train of cars which was being switched for the purpose of protecting the Eldorado Street crossing. He saw Wal