Dickinson v. Southern Pacific Co.

Action to recover damages for the alleged negligent killing of plaintiff's intestate. The defendants are *Page 728 railway corporations, the one owning and the other operating under lease a line of steam railway running through the city of Bakersfield. A train of said line ran into a buggy which the decedent, Samuel Dickinson, was driving, and Dickinson was instantly killed.

Judgment went in favor of the plaintiff for $10,230. From this judgment, and from an order denying their motion for a new trial, the defendants appeal.

There is no room to doubt that the evidence warranted the jury in finding that there had been negligence in the operation of the train. The appellants contend, however, that the decedent was himself guilty of contributory negligence, and that for this reason their motion for a nonsuit should have been granted.

Chester Avenue, the street upon which Samuel Dickinson was driving, runs north and south in the city of Bakersfield. It is intersected at right angles by Thirty-third Street. The railway track runs in an easterly and westerly direction and crosses Chester Avenue at Thirty-third Street. The trains coming over the track toward Bakersfield approach from the west. At Chester Avenue there are three tracks; a main line and two sidings. The main line is the most southerly, and it was upon this track that the train which struck Dickinson was running. Dickinson was coming along Chester Avenue from the north. The accident occurred in the daytime. The appellants rely upon the rule, well established by many decisions of this court, that the track of a steam railway is in itself "a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains." (Herbert v.Southern Pacific Co., 121 Cal. 228, [53 P. 651]; Holmes v.South Pacific Coast Ry. Co., 97 Cal. 161, 167, [31 P. 834];Green v. Los Angeles etc. Ry. Co., 143 Cal. 31, 37, [101 Am. St. Rep. 68, 76 P. 719]; Hutson v. Southern Cal. Ry. Co.,150 Cal. 701, 704, [89 P. 1093]; Griffin v. San Pedro etc.Ry. Co., 170 Cal. 772, [L. R. A. 1916A, 842, 151 P. 282].) Of course, where the circumstances are such that the injured person could not, by the exercise of his faculties of sight and hearing, have discovered the approach of a train in time to avoid injury, his failure to look or to listen will not preclude recovery. (Martin v. Southern Pacific Co., 150 Cal. 124, [88 P. 701]; Eaton v. Southern Pacific Co., 22 Cal.App. 461,

*Page 729 [134 P. 801].) Whether the case be one in which the conditions force the conclusion that the injured person did not exercise reasonable care for his own safety, or be one in which it is open to a jury to find either way on the issue of contributory negligence, is sometimes a close question. InGriffin v. San Pedro etc. Ry. Co., 170 Cal. 772, [L. R. A. 1916A, 842, 151 P. 282], it was held by a majority of the court that the case fell within the first category, but there was a division of opinion on the point. The case at bar presents a situation somewhat similar to that before the court in the Griffin case. On the northwesterly corner of Chester Avenue and Thirty-third Street was an ice plant, and the noise of the machinery operated in this plant made it difficult, if not impossible, to hear approaching trains. On the southerly side of this building was an ice-loading rack, and this, together with two freight-cars which were standing on the most northerly of the three tracks and extending well into Chester Avenue, obstructed the view of one approaching the crossing until he was almost on the second of the three tracks. We do not find it necessary to decide whether the evidence in this case was such as to compel the conclusion that the deceased, after reaching the point at which he had a view along the main track, would still, by the exercise of reasonable care, have been able to stop his horse and thus avoid a collision. The judgment must be reversed on a different ground, and as the evidence may not be precisely the same on a second trial, we think it better to leave the court below unhampered in passing upon the question whether contributory negligence is, at such trial, established as a matter of law.