Vanni v. Charles E. Burns

TAYLOR, J. pro tem.* This isan appeal from an order granting a new trial to the plaintiff in a personal injury action on the grounds of insufficiency of the evidence after a jury verdict in favor of the defendants.

The pertinent facts are as follows: The defendant Santa Fe maintains a single set of railroad tracks running in a general northerly and southerly direction across China Basin Street and extending onto Pier 54 on the San Francisco waterfront. The tracks are used to transport cargo from the pier to industrial facilities. For about three years before the collision which formed the basis of this action, the defendant railroad company maintained a set of manually controlled automatic flasher red light signals with a sounding bell on both sides of the

[60]Immediately adjacent to Pier 54 and to the east of the tracks is a restaurant known as Mom’s Café. During the noon hour on April 16, 1957, the plaintiff parked his car near the restaurant and entered for a cup of coffee. At approximately 12:30 p. m. he left the café, got into his car, backed it around and proceeded forward in a general westerly direction to a point where he stopped on the tracks for several seconds, just before reaching the easterly edge of China Ba-sin Street, to await the passing of a truck coming from his left and proceeding on China Basin Street. tracks, to control traffic on China Basin Street. These signals had not been activated at the time of the accident. Plaintiff was familiar with this area and had seen and heard the signals on previous occasions.

At this time defendant railroad’s switch engine with some flatcars attached was facing in a general southerly direction with its front three or four feet outside Pier 54 gate, and according to the engineer’s testimony, 25 to 30 feet from where the collision occurred. The engineer testified it had been stationary in this location for 15 minutes. The plaintiff testified that when he came out of the café he did not see the engine but did see the flatcars and that the train was stopped. After getting into his car the plaintiff never again looked to his right in the direction of the train prior to the collision.

The engineer testified that the train foreman who was on the pier in back of the engine gave a forward order; that the engineer then rang the bell, started the engine when the foreman said “Clear,” and that in three or four seconds the collision occurred. The plaintiff and other witnesses testified that they did not hear the engine bell. The engineer being on the right side of the cab never saw the plaintiff’s car until after the accident. The fireman, who had a direct view of the area occupied by plaintiff’s car, did not testify. A witness named Weckerle who was seated in a truck 20 to 30 feet from the defendant’s engine and had a clear view of the entire accident, testified that the plaintiff’s car was stopped on the tracks both before the engine moved from its position outside the pier gate and at the time of the collision. The plaintiff testified that he was just starting his car from its position on the'tracks and had gone about one foot when he was struck.