Bilton v. Southern Pacific Co.

ANGELLOTTI, J.

This action was brought by plaintiff to recover damages resulting from the death of his minor son, alleged to have been caused by the negligence of defendant. The case was tried by a jury, which rendered a verdict in favor of plaintiff for three thousand dollars, upon which judgment was entered. Defendant appeals from such judgment and from an order denying its motion for a new trial.

It is earnestly contended that the evidence was insufficient to sustain the verdict, for the reasons,—1. That it failed to show any negligence on the part of defendant; and 2. That it showed that the deceased was guilty of contributory negligence precluding a recovery. The deceased, a boy within a few days of his seventeenth birthday, and possessed of all his faculties, was driving, in a light spring wagon filled with groceries and drawn by one horse, across defendant’s railroad track, where the same crosses Twelfth Street, in the town of Paso Robles, when the wagon was struck by one of defendant’s locomotives and he was instantly killed. The locomotive was attached to a south-bound passenger-train, which was coming into the town several minutes late, and there was evidence to the effect that it was running at an unusually high rate of speed for that place, some of the witnesses testifying to thirty-five miles an hour, and the evidence as to the space within which the train was brought to a stop tending to corroborate this. The Twelfth-Street crossing was about twelve hundred feet north of the railroad station. The town was, according to the census of 1900, «a-place of 1,224 inhabitants. There was some testimony to the effect that the whistle of the locomotive was not sounded at the customary place, some blocks north of Twelfth Street, and that the bell upon the locomotive was not rung. The evi

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dence indicated that at the time of the accident, by reason of an embankment and a curve in the railroad track, one approaching the crossing on Twelfth Street from the west, as was deceased, could not obtain a view of the track to the north of Twelfth Street until within thirty or forty feet of the crossing, and that from that point to a point eight or ten feet from the track one could see the track to the north only for a distance of about one hundred and twenty feet. Changes have since been made making the crossing less dangerous, but there appears to be no serious contention that at the time of the accident the situation was not as already stated. Fronting on the west side of the railroad right of way, and within two hundred feet of the south side of Twelfth Street, was a flour-mill, the machinery of which was in operation at the time of the accident. There was evidence to the effect that the grade of Twelfth Street from a point about one hundred and twenty-five feet west of the crossing to the track is a down-grade of about eight to eight and one half feet to the hundred. The railroad track approaches this crossing from the north on a very slight up-grade. The accident occurred on the westerly one of the three tracks of the defendant crossing Twelfth Street. The deceased had resided in Paso Robles for many years, and had been driving this wagon (a grocery delivery wagon) for several months, and was well acquainted with the crossing. There was evidence introduced on behalf of the plaintiff to the effect that the deceased drove his wagon down Twelfth Street toward the track at a slow trot until he came within about eight or ten feet thereof, when he brought his horse to a walk, momentarily paused, looked up the track and apparently listened, and then proceeded on a walk across the track. The evidence of plaintiff’s principal witness showed that after the train reached a place where it could be seen from within a few feet of the track, which must have been within one hundred and twenty feet of the crossing, two or three short sharp blasts of the whistle were sounded as an alarm, and this is also the evidence of the engineer of defendant’s train. If the train was traveling at the rate of thirty-five miles an hour, as we must assume it was in view of the verdict and the order of the trial court denying the motion for a new trial,, it took only the merest fraction over two seconds to reach the crossing after the giving of such blasts.