Stephenson v. Northwestern Pacific Railroad

THE COURT.

We ordered a transfer of this cause to this court, after decision therein by the District Court of Appeal, for the reason that some of the members of this court were not in entire accord with the conclusion of the District Court of Appeal, holding that plaintiff was guilty of contributory negligence in the operation of his automobile, which collided with defendant’s locomotive and train, and, therefore, not entitled to recover in damages for the injuries sustained by him in said collision. After a further

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study of the evidence in the case and the decisions of the courts of this state applicable to the defense of contributory negligence, we have reached the conclusion that the opinion of the District Court of Appeal correctly disposes of all questions arising under said defense and we therefore adopt said opinion as the opinion of this court. Said opinion, written by Presiding Justice Koford and concurred in by Justices Nourse and Sturtevant, is as follows:

“Respondent recovered a verdict and judgment against appellant for $25,000 for personal injuries inflicted upon him by appellant’s locomotive and train when it collided with his automobile at the Matheson street crossing in the city of Healdsburg. Appellant claims upon this appeal that the conduct of the respondent was negligent, barring his recovery despite negligence of the appellant.

“The crossing is about one-quarter (¼) mile north of the depot. The train left the depot at 4:50 p. m., February 4, 1925, and proceeded north towards the said crossing where the collision occurred a few minutes later. The railroad track crosses Matheson street curving on a large radius, the inside of the curve being to the east. About twenty-eight feet east of the track and south of Matheson street is a large packing house extending over two hundred feet along the railroad right of way and about one hundred and twenty-five feet along. Matheson street. Respondent had parked his automobile on Matheson street at the north end of this packing house near the railroad track but where the building blocked his view of the track south towards the depot. He went inside the building upon business for about five or ten minutes. Then he came out and entered his automobile alone. He said in substance: I could see the railroad track. I looked up and down it. I did not hear any train or see anything, so I started the automobile slowly, and I looked again and there was a little grade a little dip there (in the street) and I started slowly across the track in low gear at not over five or six miles per hour and just all of a sudden there was a flash that’s all I saw. After looking from a point opposite the corner of the packing house I did not look any more because I had already looked. Respondent was never aware of the presence of the train until it struck him. He testified that he heard no bell, whistle or noise. The positive testimony of the witnesses