Cooper v. Los Angeles Terminal Railway

GRAY, C.

The plaintiff in driving across defendant’s track on a street in South Pasadena was struck by defendant’s train and seriously injured, for which she brought this action and obtained a verdict and judgment for four thousand dollars. The defendant appeals from an .order denying its motion for a new trial.

1. The principal contention of appellant is, that the verdict is contrary to evidence, for the reason that the evidence shows that plaintiff’s, in jury was the result of her own negligence in crossing the track without keeping a proper lookout for the train. The plaintiff testified, in substance, that before going

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upon the track she stopped her carriage a short distance.from, and at a point where she would have a clear view of, the track each way and looked and listened for a train; hut not seeing or hearing any, advanced to the track, looking all the time as best she could for an approaching train, and first saw the train when her horse was already on the track. She then struck the horse, but the locomotive caught the hind wheels of her vehicle and wrecked it, at the same time throwing her a great distance. The evidence further tends to show that there is a curve in the track of defendant at the point of the collision, and that the train, coming from the direction it did at the time of plaintiff’s injury, emerges from a cut between five hundred and six hundred feet from said point, and cannot be seen for a greater distance than that from any place on the course traveled by plaintiff as she approached defendant’s track. It also appears that there is a tree and a railroad-station building between where plaintiff stopped to look and listen and the railroad track, and that these objects had the effect to shut off plaintiff’s view from parts of the track as she passed on towards the same. Plaintiff testified that she heard no bell or whistle, and several witnesses who were in positions to hear testified that no whistles, bells, or other alarms were sounded as the train approached the crossing, but that the -train seemed to be coasting down a descending grade, and ran with unusual quietness at a rate of fully thirty miles an hour. The plaintiff is also corroborated by other witnesses in the matter of having stopped to look and listen for the train. In support of the verdict and the conclusion reached by the trial judge in denying a new trial, this evidence must all be taken as true. The jury seem to have concluded that the injury to plaintiff was the proximate result of defendant’s failure to ■ give the usual warnings on approaching the crossing, and was not to be attributed to any contributory negligence on the part of plaintiff. We cannot say that this was an unreasonable conclusion to draw from the facts presented, and, therefore, cannot say that the verdict was, as a matter of law, without support in the evidence. It was for the jury to sift the testimony and determine which of the conflicting witnesses told the truth, and then, having ascertained the facts, it was for them to say, under proper instructions as to the law, whether