Baldwin v. Pacific Electric Railway Co.

LANGDON, J.

This is an appeal by the plaintiffs in two cases which were consolidated by stipulation in the trial court because each ease involved the same facts. The plaintiffs, respectively, are heirs of Elwood L. Baldwin, deceased, and James T. McGuffin, deceased. Baldwin and McGuffin were killed in a collision between an automobile driven by McGuffin, in which Baldwin was riding and an electric car owned and operated by defendant Pacific Electric Railway Company.

It is unnecessary to recite the facts in great detail, because the verdict of the jury has determined the issues of negligence upon conflicting evidence. In brief, the situation is that the automobile was being driven, at night, along the state highway which was intersected by the railway tracks of the defendant company. The railway tracks were protected by gates which were properly lowered at the time of the collision. From the gates was suspended a red lantern. Decedents crashed through the gates on to the tracks and the automobile in which they were riding was struck by the train. There are some conflicts in the evidence, as is usual in a ease of this kind, but the record contains abundant evidence to support the finding of the jury, that the defendant company was free from negligence and that the accident was caused solely and proximately by the negligence of McGuffin. There is in the record testimony which indicates clearly that the driver of the automobile was or should have been familiar with the crossing and there was no evidence to indicate the contrary. He had lived for eleven years at a near-by town and his wife testified that they had driven over the crossing occasionally during that time, but not often. While appellants contend vigorously that the decedent McGuffin was not familiar with the crossing and their objection to some of the instructions given by the court is predicated upon this assumption, there is no evidence in the record to support this assumption, and, as we have stated, the only evidence upon the question indicates the contrary.

The larger portion of the appellants’ brief is made up of lengthy quotations from the evidence favorable to appel

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lants, but in the face of the very decided conflict between the facts and inferences to be drawn therefrom, we shall not attempt to usurp the province of the jury in determining the facts.