Green v. Los Angeles Terminal Railway Co.

SMITH, C. This is a suit brought by the plaintiff to recover damages for the death of his wife, alleged to have been the result of the negligent operation of the defendant’s railroad. The plaintiff recovered judgment for the sum of $5,000 and costs; and the appeal is from the judgment, and from an order denying the defendant’s motion for new trial.

It is found by the court that at the time of the accident the defendant’s train “was being run and operated in a very dangerous and grossly negligent and careless manner, as to its rate of speed and failure to sound ordinary signals of warning,” and that the accident to the deceased was the result of the negligence of the defendant and its employees; “that before crossing or attempting to cross the defendant’s railroad track [the deceased] used ordinary care, and did what an ordinarily prudent person would have done under the circumstances”; and that she “did not by her own carelessness or negligence in any way contribute to said acci[955]dent.” But it is claimed by the appellant, in effect, that these are inconsistent with the more specific findings, and that upon the latter the conclusions of the court and the judgment should have been different. The case, as presented by the specific findings, is as follows: The defendant’s railroad runs easterly along Humboldt street, in Los Angeles city, crossing at right angles Avenues 21 to 26, inclusive, and from the last crossing, leaving the street by a sharp curve to the northward. Humboldt street, between Avenues 22 and 23, is crossed at an angle of thirty degrees by “a wide, hard-beaten path, regularly traveled by pedestrians,” which runs from a point on Avenue 23 south of Humboldt street, northwesterly, across vacant lots, to Avenue 22, in the vicinity of the house where the plaintiff and deceased lived. The distance along the path from its intersection with the south line of Humboldt street to its intersection with the railroad track is about thirty feet; and from the former point, looking easterly, one can see the track to the curve at Avenue 25, a distance of about eight hundred feet, but not beyond. The deceased was killed at the intersection of the path above described with the railroad in the afternoon of November 15, 1899, while it was still light, by a train coming from the east. She was then passing along the path to her home; and when she came to Humboldt street, and had entered thereon, “she looked up defendant’s track in the direction from which the train . . . . was coming,” and “there was [then] no train on the defendant’s track in sight from where she was.” The deceased then, without again stopping or looking up or down the track, proceeded to cross the street and railroad, following .the path, and as she stepped upon the track was struck by the engine of defendant’s train coming from the east, and fatally hurt. The train at the time of the accident was running downgrade, without using steam, and making but little noise—“at an excessively high and dangerous rate of speed” (between twenty-five and thirty miles per hour). No whistle was blown on the engine from the time it passed a point beyond the curve, out of sight of the deceased, until within ten or fifteen feet of her, and just as the engine was about to strike her; nor was the bell rung before or while crossing any of the streets until just above where the acci