White v. Southern Pacific Co.

GAROUTTE, J. Defendant appeals from a judgment and order denying its motion for a new trial. The action was hrqught to recover damages for personal injuries. Plaintiff was in the act of driving across the railroad track of defendant, when a train approached, and, in attempting to save himself from a collision, he was thrown out of his vehicle and injured. The matters involved in this appeal are few, and not of great importance.

The negligence of defendant at the time of the accident is substantially conceded by its attorneys. Indeed, the testimony of its principal witnesses—employees—indicates a degree of negli[306]gence upon its part in the handling of its train of ears closely approaching recklessness. But to defeat plaintiff's right of action it is insisted that he was guilty of contributory negligence, and for that reason it is claimed the evidence fails to authorize and justify the verdict of the jury. By this contention we are brought to an examination of the salient facts of the case.

Plaintiff, in a one-horse vehicle, was traveling westward upon Market street, a well-traveled street in the city of Stockton. He arrived at Sacramento street, which intersects Market street and extends north and south. This street is covered by various railroad tracks of defendant, and is used constantly for railroad purposes. When plaintiff approached Sacramento street he found a detached train of boxcars resting upon the track nearest to him. These cars extended to the south upon the street, and blocked his passageway over Market street to the width of about fifteen feet. He passed over this first track at the end of these boxcars and at the moment his horse stepped upon the next track, which was but a few feet distant, a freight train, backing from the south, was upon him, and in his efforts to escape he was injured. There is some conflicting evidence as to the ringing of the bell of the engine at the time of the accident, or, to be more exact, it may be said there was some conflict in the evidence as to whether or not plaintiff heard the engine bell ringing. But we attach no special importance to this matter. The ringing of a bell, or the blowing of a whistle, upon a train that is traveling backward, is calculated to deceive a traveler upon the highway. The distance of the alarm from the real point of danger well serves the purpose of lulling the traveler into a false sense of security. This is essentially true where the traveler upon the highway, by reason of obstructions near the track, cannot see the approaching train, and therefore is compelled to depend largely upon his sense of hearing alone; In this case a sight of the approaching train was entirely denied plaintiff by reason of the stationary cars and other obstructions. If he had heard the bell upon the engine, which even at the moment of the accident was distant more than fifty yards, he would probably have felt secure, and made the attempt to cross the track. 'And as matter of law this court would not say that it was contributory negligence under such circumstances to rely upon the alarm given by¡