Basham v. Southern Pacific Co.

SHAW, J.

This action was begun by Eva M. Coffey as administratrix of the estate of her deceased husband, O. A. Coffey, to recover damages caused by the death of her husband, alleged to have been the result of negligence of the defendants. The verdict was given for the plaintiff and the defendants appeal from the judgment.

After the taking of the appeal Eva M1. Coffey died, and Mary T. Basham was duly appointed as administratrix of said estate, and she has been substituted as plaintiff herein.

The accident occurred in the city of Merced, on the main track of the Southern Pacific Railroad, at the crossing of R Street. The deceased was traveling on R Street from the north toward the south, toward said crossing, at the time the train approached the city of Merced. He was in a farm wagon, driving two horses and leading two others which were hitched to the rear of the wagon-bed. The bed was what is called a grain wagon-bed, composed of timbers and planks set upon the running gears, and not extending above the wheels. He was sitting about one-third of the way back from the front of the bed, either on a box or on some sacks.

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The horses were gentle and entirely under control. They were walking at the rate of about three miles an hour. As the train neared the crossing of R Street the engineer whistled for the crossing at the usual place. The train had previously been going at very great speed to make up some lost time, having made up nine minutes of the time in the preceding fourteen miles. The track had a very slight down grade at that place, and at a point one mile from the station at Merced the steam had been shut off, and the train was running on its momentum. After shutting off the steam the brakes were applied at intervals to slacken the speed. At a point from eight hundred to one thousand feet from R Street the engine whistle was blown for the R Street crossing. The fireman was engaged in looking ahead for obstructions upon the track and giving directions to the engineer regarding them; the engineer was managing the machinery of the locomotive and brakes. These were their respective duties. At that time the fireman saw Coffey approaching the track on R Street, leaning forward, with the reins in his hands. The fireman said to the engineer, “Blow your whistle; there is a, fellow coming over here and I don’t know whether he sees us or not.” The engineer then gave several sharp, short blasts of the whistle, as a warning of danger to attract the attention of Coffey. The train was then proceeding at a speed variously estimated at from fifteen to thirty miles an hour, and its speed was slackening as it proceeded. At the rate of thirty miles an hour it would take eighteen seconds to reach R Street. At the time the fireman first saw Coffey he, Coffey, was about one hundred feet from the main track on which the train was running. He .continued to approach the track without increasing his speed, in the same attitude, until the team had reached a point some twenty or. thirty feet from the track and the engine was within about one hundred and fifty or two hundred feet from the crossing. Coffey was then giving no sign that he observed the train or that he intended to stop before driving upon the track. That instant the fireman for the first time realized that he might not be aware of the approaching train. He cried to the engineer, “Hold her; that guy ain’t going to stop.” The engineer immediately applied the emergency brake and stopped the train as quickly as it could be done. Coffey made no move indicating his knowledge of the approaching train until