Martz v. Pacific Electronic Ry. Co.

CONRET, P. J.

The action was brought by the widow and three minor children of Prank Martz to recover damages on account of the death of Martz, alleged to have been caused by the negligence of the defendant company. The defend^ ant denied the charges of negligence, and set up the defense of contributory negligence on the part of the deceased. The defendant appeals from the judgment and from the order denying its motion for a new trial.

At about 2 o’clock in the afternoon of the first day of February, 1912, Prank Martz was traveling in his automobile in a southerly direction on Santa Anita Avenue in the county of Los Angeles, and was approaching a point where that highway is crossed by the tracks of defendant company. At the crossing a collision took place between the automobile and a car of the defendant. Immediately east and west of Santa Anita Avenue the railroad occupies a private right of way. It is a double-track railroad which runs east and west across the avenue, but curves toward the south, at a point beginning about one hundred yards west of the avenue. The curve is such as that at a distance of one thousand feet west of Santa Anita Avenue cars beyond that point are not visible from the avenue. Appellant claims that the evidence is such as to compel the conclusion that no negligence was established on the part of the defendant, and also very earnestly contends that contributory negligence on the part of the deceased was conclusively established. For these reasons it is claimed that the court erred in refusing to instruct the jury to render a verdict for the defendant.

At the same time when Mr. Martz coming from the north was approaching the railroad, an express car of the defendant was traveling in an easterly direction on defendant’s southerly track. Santa Anita Avenue is constructed in two roadways separated by a row of eucalyptus trees down the center. On the westerly side of the west roadway of 'Santa Anita Avenue, and north of the defendant’s right of way, there was at the time of the collision a small white building

[594]

about thirty-two and one-half feet long, located about forty-seven feet west of the westerly line of the highway, and about forty-three feet north of the south track. Along the westerly side of the west roadway was a row of tall eucalyptus trees, about ten feet apart. A sign-board, marked “Railroad Crossing—Look Out for the Cars,” had been placed at the intersection of the right of way with the westerly roadway, and the railroad tracks were raised slightly above the level of the roadway upon which Martz was traveling, thereby rendering the tracks plainly visible to one occupying his position. No persons but the motorman and conductor of defendant’s car (so far as the evidence shows) saw the deceased at the time of the accident, and they saw him only for an instant immediately preceding the collision. There is no testimony from any observer as to whether the deceased looked or listened for the approach of the car. The motorman testified that his car wasi traveling eighteen or twenty miles an hour, and that the deceased was traveling “as fast as I was going, maybe a little faster.” In addition to the foregoing undisputed facts, appellant claims that the evidence shows that the branches of the eucalyptus trees were high above the traveler’s head, and did not materially obstruct the traveler’s view in looking to the west; and that the tracks with poles and wires were plainly visible to the traveler; and that it is also certain that Martz “made no effort to avoid the approaching train, for the marks of his automobile on the ground showed that he was headed due south and had not swerved in either direction.” Appellant admits that there was conflict in the evidence as to whether warning was given by blowing of the whistle on defendant's car, but claims that the negative testimony of plaintiff’s witnesses that they heard no whistle blown is not entitled to credit as against the positive testimony of other witnesses who said that they heard the whistle. Appellant further admits that the evidence as to the rate of speed at which defendant’s car was traveling varies from eighteen to thirty miles an hour. There is evidence tending to show that the branches of the eucalyptus trees were above the traveler’s head, but there is also testimony that there was an undergrowth extending upward from the ground, and that the limbs of the trees came down and met this undergrowth; that there were sprouts growing up from the trees which were as