Correa v. Davis

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover a judgment for damages by reason of injuries suffered in a collision between" his automobile and an interurban train operated by the defendant. The case was tried before the court sitting without a jury. The court made findings in favor of the plaintiff and entered a judgment in the plaintiff’s favor. From that judgment the defendant has appealed and has brought up the judgment-roll and a bill of exceptions.

The accident occurred near Melrose station on the Southern Pacific right of way in Alameda County on the twenty-seventh day of February, 1920. The plaintiff, accompanied by a young lady, was driving on East Fourteenth Street westerly toward the city of Oakland. As he approached the crossing of that street with Forty-seventh' Avenue one of the trains of the defendant was standing at the station. As a witness in his own behalf the plaintiff testified that the train was an interurban electric train and that it was equipped with apparatus that from the casual inspection of a passer-by it could not be ascertained whether the train was to move north or to move south. He said that he had been and was engaged in operating his automobile as a taxi; that he frequently passed by Melrose station; that the defendant maintained at that station a flagman, who would step into the street and signal to passers-by that a train was approaching if such were the fact. The plaintiff further testified that when he approached the track he saw the train; that he looked for a flagman and no flagman was in the street; that about that time he put on his brakes. Before the plaintiff attempted to cross the track, and before the train started to move, the plaintiff testified that he had been driving fifteen miles an hour. When he was about to approach the

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tracks he testified that he was going four miles an hour. As he was quite close to the track he testified that he saw the train in motion and that he then tried to stop his ear and could not do so and his car slid forward on the wet street.He further testified that about the same time that he saw the train was in motion he heard the bell on the train ringing and that before he saw the train moving he did not hear any signal from the train. Throughout the testimony of the plaintiff he claimed that from the time he first approached the street crossing he saw the train, and that continually thereafter the train was within the scope of his vision. Nearly every other fact above stated is contradicted more or less by other statements made by the plaintiff, or by other witnesses.