Fresno Traction Co. v. Atchison, Topeka & Santa Fe Railway

[359]

MELVIN, J.

Defendant appeals from a judgment for three thousand dollars by way of damages and from an order denying its motion for a new trial.

The cause was tried before a jury. Plaintiff and defendant are transportation companies. Their, tracks intersect at a street crossing in the city of Fresno and at that place, in the night-time, one of defendant’s trains backed into a car belonging to plaintiff, causing the damages for which judgment was given.

The complaint alleged that the injury to the property of the plaintiff was caused by the negligence of defendant’s employees in the operation of a freight train. It was specifically charged that defendant’s servants were negligent because of the failure to maintain lights upon the rear end of the train which backed into plaintiff’s electric car; by reason of the neglect to ring the bell or blow the whistle of the locomotive; and owing also to the fact that a watchman employed by defendant and stationed near the point of intersection of the tracks gave the motorman and conductor of plaintiff’s ear a signal that a safe crossing might be made. There was also the general allegation, usual in such complaints, that the collision was wholly caused by the carelessness and negligence of the defendant and without any fault on the part or behalf of plaintiff. The answer denied the acts of negligence specifically set forth in the complaint and pleaded as a distinct defense that the collision was caused solely and proximately by the negligence of plaintiff’s servants.

'The principal contentions on behalf of defendant in favor of a reversal (and the only ones requiring discussion by this court) are made in connection with the admission in evidence of an ordinance of the city of Fresno and certain instructions with reference to that by-law given by the court to the jury. This ordinance required the maintenance and operation of safety gates by defendant at the crossing where the accident occurred, and it was shown by the evidence that, in obedience to the mandate of the law, defendant had erected such gates. But because it was shown without contradiction that for several months preceding the collision defendant had ceased to operate the gates and that this fact was known .to plaintiff and particularly to the motorman in charge of the car which was demolished, it is argued that