Rowe v. Southern California Railway Co.

GRAY, P. J.

This action is brought by plaintiff to recover damages from defendant for the alleged negligent killing of plaintiff’s■ husband by one of defendant’s passenger trains at a street crossing in the city of San Bernardino. At the conclusion of plaintiff’s evidence, defendant’s motion for a nonsuit was granted. The plaintiff appeals from the judgment which followed.

The only question presented arises upon the order granting the nonsuit. It is contended by appellant that, while the negligence of the deceased must be admitted to have contributed to his death, yet the defendant’s engineer had notice of the negligence of the deceased in time to have avoided the killing if he had used proper care and stopped the train. The facts of the case are in many respects similar to the facts in the case of

Green

v.

Los Angeles Terminal Ry. Co.,

143 Cal. 31, [101 Am. St. Rep. 68, 76 Pac. 719], and may be briefly stated as follows:

The deceased was approaching the defendant’s track from the west on the sidewalk which traversed the south side of the street. The defendant’s locomotive with a train of cars attached was approaching from the northwest, the same point to which the deceased was going, at an angle of about forty-

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five degrees with the course deceased was traveling. The speed of the train was five or six miles an hour, and as it was approaching the deceased, partially from behind and to the left, it could not be seen readily by him unless he turned his head. This was in the evening, nearly dark. An oil lamp was burning in the headlight of the locomotive. The engineer, leaning out the window from the right-hand side of his cab, saw deceased passing along the south sidewalk, while the engineer was still north of the street. He observed that deceased was walking slowly and without any attention to his surroundings, and for the purpose of attracting his attention he blew three or four quick blasts upon his locomotive whistle. He then called to the deceased in a loud voice, “Look out there!” and seeing that the deceased still paid no attention he immediately turned on the whistle again, at the same time setting the air-brakes; but it was then impossible for the engineer to prevent a collision. The deceased unheedingly stepped immediately before or into the cowcatcher. Both his legs were broken between the ankles and knees, and he was thrown back from the track upon the same side from which he approached. A day or two later he died. After the brakes were set, the locomotive and train were brought to a stop in about thirty feet. The engine bell was kept ringing from the time the deceased was first seen by the engineer. The deceased held the office of constable in the township where he was killed. He was habitually given to spells of abstraction and absent-mindedness, and was partially deaf in the left ear (the one nearest the approaching locomotive). These physical defects were not known by the engineer.