Scott v. Southern Pacific Co.

KNIGHT, Acting P. J.

An action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The jury returned a verdict in plaintiff’s favor, but the trial court granted a new trial upon the ground of .the insufficiency of the evidence; and from the order made in that behalf plaintiff has taken this appeal.

The evidence adduced at the trial is conflicting on some points, but in the main is without dispute. Briefly stated, it is as follows: Shortly after 2 o’clock on the morning of May 7, 1927, one of the defendant’s freight trains consisting of an engine and fifty-three cars, traveling easterly between Redwood City and Newark over the Dumbarton cutoff, stopped a short distance easterly of Redwood City to take water from a tank standing just beyond the so-called Middlefield road crossing in San Mateo County, and in doing so blocked the crossing, about one-third of the train not yet having passed over it. Just as the train was coming to a standstill appellant approached the crossing from the north in an automobile. He was driving alone and did not see the train until within ten feet of it, and then, in order to avoid colliding with the side of it, turned abruptly to the left and by such maneuver overturned his automobile and was injured. The train crew consisted of an engineer, a fireman, conductor and three brakemen; and the train was made up of various kinds of cars, including tank and box cars. The “head” brakeman was stationed on the engine, the conductor and “swing” brakeman were riding about the middle of the train, and the “rear” brakeman was in the caboose. While crossing the highway the train traveled slowly, at a speed of about two miles an hour, and as soon as it stopped the conductor and “swing” brakeman alighted and the latter was instructed by the conductor “to go back and protect the crossing and cut the train if necessary.” He started back toward the crossing at once, but had gone not more than fifty feet when he heard a crash, and upon reaching the crossing found plaintiff’s automobile overturned

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on the west-bound track within a few feet of the train. Appellant had already been extricated from the overturned automobile by friends who had been following closely behind him in another automobile.

At the time of the accident appellant was eighteen years of age and lived just off the Middlefield road, a short distance south of the railroad crossing. He had resided there for upward of seven years, and had traveled the road and over said crossing very frequently going to and coming from Redwood City, and was therefore thoroughly familiar with the location of the crossing. Besides there were railroad and other crossing signs erected along the side of the road about 365 feet from the crossing. On the night of the accident appellant had been visiting friends near Redwood City and was returning home, and he testified that he knew when he was about to cross the tracks and consequently slackened his speed to less than fifteen miles an hour; that the headlights of his automobile were lighted and in good condition, but that it had been raining and his vision was obscured by weather conditions and the moisture on the windshield of his car. He admitted, however, that because of the speed he was traveling when close to the crossing and the wet condition of the pavement a collision with the side of the train would have been inevitable if he had not turned abruptly to the left. With reference to the question of visibility that night the rear brakeman testified that as the train neared the crossing he looked ahead in the direction of the Middlefield road for a distance of a quarter of a mile and saw the headlights of an automobile approaching the crossing at a rapid rate of speed and immediately after the train stopped he heard a crash; that believing that the automobile had run into the train he instantly “cut” the air control of the train so that it could not be moved; that he then saw a freight train approaching from the opposite direction on the westbound tracks, and that he ran forward to flag that train. It was also shown that there was an electric street light suspended from a pole about sixty-two feet south of the crossing; that the light was burning at the time of the accident and could be seen on the Middlefield road on the northerly side of the crossing, over the top of the train, for a distance of sixty feet or more.