BEATTY, C. J., concurring.
I concur in the judgment of reversal; but I think it can scarcely be held that the superior court erred in overruling the motion for a nonsuit. At the close of plaintiffs’ evidence in chief,—viewing it in the favor
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able light in which it must be regarded for the purposes of this motion,—the case presented was in substance as follows: Mrs. Green and Mrs. Warren were familiar with the locality, and knew as they approached the crossing that a train from the east was about due at that point. They knew also the disposition of the horse they were driving, and that they could not safely stop near the track for the train to pass. In passing the gate • 110 feet from the center of the railway, they had a view of that portion of the track between a point 350 feet east of the crossing and a point 990 feet east of the crossing. They availed themselves of this opportunity to look, and saw that no train was on that portion of the track in view, and the conclusion necessarily followed that the expected train had either passed out of view to the west or that it was on that portion of the track extending 350 feet east of the crossing, or that it was fully 1,000 feet distant. In the first case, no danger was to be apprehended; in the second, the train, moving no faster than ten miles an hour, must come into full view and cover the crossing before they, moving at the rate of three and a half miles an hour,—a ‘ ‘ fast walk, ’ ’—could possibly reach the right of way. In the third case alone would there be any danger, and then only upon the supposition that the train would be moving within the limits of San Bernardino at the rate of thirty-five miles an hour, and without giving any of the usual and statutory signals of its approach. I feel unable to agree that under these circumstances the failure of those ladies to stop and listen at some point within the eighty-five feet between the gate and the south line of the foundry would have been negligence
per se.
But the case made by the plaintiffs’ evidence was very materially changed by the evidence.introduced by defendant, and especially as to the speed at which the train was moving, a question of vital importance to the case for the plaintiffs, which depends upon the assumption that the train was moving at a rate of at least thirty-five miles an hour. One witness for the plaintiffs, Joseph Kelly, testified that he was driving toward San Bernardino parallel to the railway where it extends north and south beyond the elbow at which it turns to the west. He had long been accustomed to estimate the speed of horses. He thought he was traveling as fast as ten miles an hour, and was certain that he was not moving as slow as
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seven miles. His estimate was, that the train, which passed him before reaching the curve, was moving three or four times as fast as he was, and that its speed was thirty-five or forty miles an hour. This was the only evidence offered by the plaintiffs directly to the point of the speed of the train, and it was corroborated only by the inference to be drawn from the evidence of Mrs. Warren, that the train was not in sight when she passed the gate, and by the violence of the subsequent collision. Against this the defendant’s witnesses testified that the train was moving between the curve and the crossing at about the rate of twelve miles an hour. This was sufficient to make a conflict of evidence upon the point, but the defendant went further. The plaintiffs’ witness Kelly had by his testimony fixed the point at which the train passed him and the point at which he had arrived when the alarm-whistle sounded just before the collision. This distance was surveyed and found to be 1,002 feet, while the distance covered by the train between the initial point and the crossing during the same time was only 2,150 feet, which, upon the basis of Mr. Kelly’s estimate of his own rate of progress, would prove that the average speed of the train before reaching the crossing was barely twenty miles an hour; and if that was the average speed for the whole of that distance of 2,150 feet, that for the last 1,000 feet must have been considerably less than twenty miles; for in addition to the opinion of plaintiffs’ witness that at the point where the train passed him, about 1,000 feet beyond the curve, it was moving more than thirty miles an hour, it was shown by defendant’s witnesses that after passing the curve steam was shut off, and the train was moving partly by its momentum and partly by gravity on a slightly descending grade. All the evidence upon this point tends to the conclusion that the train between the curve and the crossing was moving at a speed of less than twenty miles an hour; and the most convincing part of this evidence consists of a survey of distances, which, if false or inaccurate, could easily have been proved false, but which was wholly uncontradicted.
If this is so, one of two conclusions necessarily follows: Either that the train must have been on or past the curve when these ladies came to the gate, and that in driving by without stopping they failed to see it, or that between the gate and the track they must have driven at a pace so slow that a train
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moving at a very moderate speed—less than twenty miles an hour—could cover the distance from a point beyond their view at the gate to the crossing before they could reach the point of collision.
The first of these suppositions is by no means improbable; for besides the fact that from a point opposite the north side of the gate-opening a portion of the track at the elbow (where the train might have been) is not visible, it is also true that at a point still nearer on the curve the train was headed directly toward the gate, no part of it being visible from that point except the locomotive, and that apparently motionless. But this is a theory of the accident which, however probable it may seem, would not perhaps justify this court in holding that the verdict of the jury is not sustained by the evidence, and my only object in entering into this discussion of the facts is to show that the case was such as to entitle the defendant to have the question of contributory negligence submitted to the jury upon a correct statement of the law governing its liability.
The superior court gave to the jury, among others, the following instructions:—
“No. 11. Where, by defendant’s negligence, the party injured is put in a place of danger, and in attempting to extricate himself from it he does not take the best hazard, he will not be chargeable with contributory negligence if the hazard he do'es take is such as a man of ordinary prudence might have taken under the same circumstances.
“No. 12. I further charge you that it is an established rule of law that one person will not be allowed to impute a want of vigilance to another injured by his act, if that Very want of vigilance were the consequence of an omission of duty on his part; that if the defendant by his own act throws the injured person off his guard, the latter’s lack of vigilance cannot be regarded as negligence, and one is not chargeable with contributory negligence in failing to anticipate the negligence of another, and in not providing against it. Every one has the right to presume that others will act in a lawful and proper manner; consequently th’e law will not hold it imprudent in the injured person to have acted upon a presumption that the defendant has done or will do its duty.”
These instructions, and especially the latter, were attacked
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by appellant in its specifications of error, and in the briefs filed in support of its appeal numerous authorities, including our own decisions, were cited in support of the contention that thiey were erroneous. The point, however, was passed over without special notice in the department opinion, and for that reason chiefly I concurred in the order for a rehearing.
The effect of the decision, as I viewed it, was to overrule without noticing at least one recent decision of this court in which a rehearing was asked and denied
(Herbert
v.
Southern Pacific Co.,
121 Cal. 232), where the same point was involved, and where the grounds of decision were thus plainly expressed :—
“The only answer to this is, that defendant’s employees did not ring the bell or sound the whistle, and that the fireman was not at his place on the left side of the engine. The argument, of course, is, that if the signals had been given plaintiff might have heard, and, not hearing them, he had the right to assume when about to make the crossing that the train had not then reached the whistling-post 1,320 feet above, and that the fireman might have seen him in time to have prevented the accident had he been upon the lookout. It may be admitted that all this was culpable negligence on the part of defendant’s employees. The defense of contributory negligence implies that defendant may have been guilty of such negligence as would justify a recovery by the plaintiff if he were not also in fault. This is no argument, therefore, against the position of the defendant.”
If this is the law, then the instructions above quoted were plainly erroneous and prejudicial. If the law is otherwise, it ought to be plainly so declared. Until it is so declared we are bound by it, and upon that ground I concur in the judgment.