Meredith v. Key System Transit Co.

PLUMMER, J.

This cause is before us on appeal by the plaintiff from a judgment entered in favor of the respondents in an action prosecuted to recover damages for the death of the husband of the plaintiff resulting from a collision between an automobile driven by the deceased and a train operated by the Key System Transit Company.

The record shows that on the morning of November 21, 1923, the deceased was driying in a westerly direction on Forty-sixth Street in the city of Oakland. That Forty-sixth Street is intersected by a certain other street known as and called Linden Street, upon which latter street the Key System Transit Company maintains two sets of double railroad tracks, that is, four different tracks. Linden Street, where it crosses Forty-sixth Street, extends in a northerly and southerly direction. At the intersection of Forty-sixth and Linden Streets the roadway and the rails of the railroad are practically flush, but northerly therefrom the ties on which the rails are located are visible and the rails themselves all stand above the surface of the street. Cross-arms and other silent warnings are shown by the testimony to be located on the intersection referred to showing the presence of the railroad lines. The trains of the respondent com

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pany are operated by electricity. It appears from the record that between 7 and 8 o’clock in the morning some twenty-four hour trains operated by the respondent cross the intersection of Forty-sixth Street. The collision which resulted in the death of the plaintiff’s husband occurred at about 7:30 A. M. The morning was clear; apparently the atmosphere wag free from fog, and it does not appear that there were any stationary or other objects to obstruct a view of moving trains for a distance of several hundred feet. On the easterly set of double tracks maintained by the respondent were operated the Northbrae and Claremont trains. On the westerly set of tracks were operated the Berkeley trains. On the morning in question the deceased, accompanied by one Henry Forsberg, was driving westward on Forty-sixth Street in a “Jewett” automobile. Upon reaching the intersection of Forty-sixth Street with Linden Street a train from the Oakland mole was observed traveling northward on the easterly track of the double set of tracks over which the Berkeley trains were operated. The automobile was halted between the two sets of double tracks, a space which has a width of a trifle over twenty-one feet. The testimony of Forsberg is to the effect that he and the deceased were working at the same place; had been going to work at about the hour referred to every morning for some two months and a half; that they frequently observed trains passing to and fro at the intersection of Forty-sixth and Linden Streets; that on the morning in question the deceased was operating the car and stopped the same within a few feet of the track on which the northbound Berkeley train was being operated; that they stopped there for a few seconds for the north-bound Berkeley train to pass by; that after the north-bound Berkeley train had passed by, the deceased, who had the gear-shift of his automobile in neutral, threw it into low gear, started the car across the westerly double set of tracks on which the Berkeley trains were operated, had cleared the easterly line of said tracks, and as they reached a position on the westerly tracks upon which the south-bound Berkeley trains were operated, he observed a south-bound Berkeley train approaching, which, at the time he observed it, was so close upon them that he knew they were going to be hit. The collision threw the “Jewett” automobile a number of feet, some of the wit