Scherer v. Southern Pacific Co.

HAHN, J., pro tem. Plaintiffs in each of the above-entitled actions, which by order of court were consolidated for trial, appeal upon the same record from, a judgment entered in each case for defendant, upon directed verdicts returned by the jury.

Both actions were for alleged injuries suffered by plaintiffs in a collision between an automobile in which they were riding and a passenger train operated by defendant. The complaint charges negligence on the part of defendant in, first, failing “to install and keep any audible or visible warning device at, near or over said grade crossing ’ ’ where the collision occurred, and, second, in “the carelessness and negligence of the defendant and of its servants and employees in the operation of said train ’ ’.

Appellants in their briefs state the questions involved in this appeal as follows:

“Thus two issues are presented for determination upon this appeal—first, is there substantial evidence upon plaintiffs' part that the defendant was negligent, and, second, does the evidence upon plaintiffs’ part respectively show contributory negligence as a matter of law?”

The evidence, upon which the court instructed the jury to return its verdicts for defendant, may be summarized as follows:

Plaintiffs Lillian Scherer and Mabel Taylor, both employed at the same establishment at Camarillo, Ventura County, and living several miles from Camarillo, entered into an agreement to go to and from their employment to[531]gether, part of the time in Mrs. Scherer’s automobile, and part of the time in Mrs. Taylor’s car. On the morning of July 3, 1929, both women started for Camarillo in Mrs. Scherer’s car. Driving in a westerly direction along Fifth Street, which was a highway running near and parallel to the railway track of defendant company, Mrs. Scherer, who was driving, brought her car to a stop at the intersection of Rice road, which highway crosses Fifth Street and defendant’s railway track at right angles. Starting slowly, Mrs. Scherer turned her car to the right and proceeded northerly on Rice road toward the railway track at a speed of about four miles per hour. Running parallel with and at a distance of about fifty-five feet south of the railway track extending from Rice road is a row of eucalyptus trees. After passing these trees and when about fifty feet south of the track, both Mrs. Scherer and Mrs. Taylor looked to the left, that is, in a westerly direction, to see if any train was approaching. Both women were familiar with the track, having used this crossing frequently. Mrs. Scherer testified that she knew a train was due at this point about this time, and that when she looked up the track to the west, she looked for the train she expected would be along about that time. Both women testified that they saw no train coming. Driving along toward the track at a speed of about four miles per hour, neither of the women again looked to the west for an approaching train until they were on the track and the train was upon them. Approaching the track from Fifth Street there is an upgrade to the track of from two to four feet. There were “little hollows in the pavement” and “holes in the track,-—around the tracks”. The road was “real rough”. Mrs. Scherer testified that after passing the row of trees, when she looked up the track to the west, she could see a distance of at least one-half mile; that there was nothing to obstruct her view of the track after she passed the trees during her progress up to the track; that there was the usual crossarm R.R. warning sign at the crossing, but no signal device of any kind; that she could have stopped her car within the space of one foot at any time after she turned into Rice road and proceeded toward the track.