Koch v. Southern California Ry. Co.

HENSHAW, J.

Plaintiff sued to recover damages for personal injuries occasioned him by reason of the alleged negligence of the defendant in so operating its trains that plaintiff was struck by one of them at the crossing of a street in the city of Pasadena. The negligence charged was the omission upon the part of the defendant company to sound the bell and to close the gates maintained at the crossing at the time of the approach of the train. Upon the taking of all the testimony the court instructed the jury to find a verdict for defendant, which the jury did, and the court’s ruling in this regard is the subject of this appeal.

The consideration of the question necessitates the presentation of the evidence, which is here given, as favorably to the plaintiff as the facts warrant. Plaintiff, about ten o’clock at night, was driving two horses attached to a light spring wagon toward the railroad track at a gait which he describes as “a pretty fair trot,” and which others describe as a “brisk trot.” Colorado Street, upon which he was driving, is seventy-five feet wide, with an electric railroad track running along it a little south of the middle of the street. The sidewalk on the south side of the street is eleven feet wide. An alley thirty feet wide crosses Colorado Street at right angles, and defendant’s railroad track also crosses the street in the center of that alley. The train which struck plaintiff’s spring wagon consisted of a locomotive, thirteen loaded freight cars, and a caboose. It came from the south through this alley up a steep grade at a speed of about four miles an hour, and having come almost to a standstill at a station just beyond,

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the engine was laboring heavily to get under way on the up-grade and “was puffing very hard with a loud exhaust.” There was evidence tending to show that the engine-bell and the whistle were silent, and it will be assumed that they were. There were gates across the street on each side of the railroad track, and these gates were not closed as the train crossed the street. Colorado Street was paved with asphalt, and plaintiff’s horses were newly shod with smooth shoes. He approached the track of defendant without checking the speed of his horses and “looking straight ahead”’ He says he could not see or hear the train, and first saw it when the noses of his horses were about on the railroad track. According to the map' or plat of the locality found in the record, as well as according to the undisputed evidence of witnesses, the buildings in the vicinity were so disposed that, if the plaintiff had been on the alert and driving with reasonable caution, he might have caught sight of the approaching train in ample time to have avoided the accident. Plaintiff was, and had. been for six years, familiar with the crossing, but he took no precautions whatever before driving upon it. He did not stop. He did not slow up. He did not look. He did not listen. The clattering of his horses’ feet and the noise of his wagon would certainly have interfered with his hearing the approaching train. He was moving faster than the train and failed to take any precautions by slowing up to listen, but had he been on the alert he could have heard and seen the train in time to have avoided the accident. It is difficult to understand, then, how he could have come into collision with this slow-moving locomotive, excepting that he either absent-mindedly or recklessly approached and drove on the track. Indeed, from his own testimony, it is plain that he approached the crossing with a total disregard of its dangers. In substantiation of this is his statement to one of the witnesses, which is not denied, that “My main idea was to get home. I was not paying any attention to anything.” Under the facts, then, the plaintiff, after accepting the invitation to proceed, extended to him by the open gates, used no precaution whatsoever, did absolutely nothing for his own protection and safety. He did not lessen the speed of his horses; he did not listen for the approach of the train, which was made audible to others some time before he drew near the crossing;