Hamilton v. San Francisco, Napa & Calistoga Railway

[762]

BRITTAIN, J.

The plaintiff appeals from a judgment entered upon an order sustaining without leave to amend a general demurrer to the second amended complaint for damages for the alleged negligence of the defendants as joint tort-feasors which resulted in the death of the plaintiff’s wife. The complaint was in two counts. On January 7, 1918, at about 3 o’clock in the afternoon, Mrs. Hamilton was a passenger for hire in an automobile operated by the defendant Petit, doing business and sued herein as California Taxi Service. In taking her to her destination the machine was driven along a driveway which crossed the tracks of the electric railway operated by the other defendant. The rails of the track were some six inches above the roadway of the crossing. The automobile was driven on to the tracks, and, striking the raised rails, was stalled on the track. An electric train running at the speed of about thirty-five miles an hour struck the automobile and dragged it about thi;ee hundred feet. The gasoline and oil in the machine were ignited and Mrs. Hamilton was severely burned. She died as a result of her injuries. It was alleged that the automobile was negligently driven upon the track; that the track was maintained with the raised rails above the crossing in a negligent manner, and that the train was operated negligently both in regard to its speed and in approaching the crossing without sounding any whistle or bell, as well as in such a manner that those charged with its operation

kept

no lookout for obstructions upon the track.

Upon such an appeal this court is practically in the position of the trial court. While it is the rule that the appellant must show error, where a general demurrer has been ' sustained without leave to amend, the brief of the respondent in support of the ruling is really an argument intended to sustain the demurrer. The brief of the respondent railway rests on certain propositions of law. It is contended that, because in the absence of a statute limiting the rate of speed of trains, rapidity of movement is not negligence as a matter of law.

(Larrabee

v.

Western Pacific R. Co.,