Cash v. Los Angeles Railway Corp.

EDMONDS, J., pro tem. Plaintiff sued for personal injuries sustained in a collision between an automobile which he was driving and a street car operated by the defendants. The trial court granted the defendants’ motion for a nonsuit, and plaintiff has appealed from the judgment.

The accident occurred late in the evening at a grade crossing in the outskirts of Los Angeles. Plaintiff testified that the visibility was good and there was no fog. The tracks of the defendant railroad company are laid on a private right of way along Broadway, a public street running north and south, and open for travel on each side of and parallel with the railroad tracks. The record shows that at the time of the accident the track construction was that of the ordinary steam railroad in open country.

According to the testimony given by plaintiff, and in which he was fully supported and corroborated by independent witnesses, plaintiff was driving an automobile at about 10 o’clock at night on a street which crossed the double tracks of the defendant corporation. When within 59 feet of such tracks he brought his automobile to a complete stop. Thereafter, traveling at a rate not greater than five or six miles per hour, [740]he drove his automobile toward the railroad crossing, which was about one foot above the street level. After thus traveling a distance of 29 feet, and when still at a distance of 30 feet from the first rail of the street railroad tracks, he for the first time became aware of the existence of these tracks. He had never been at this crossing before. He continued to drive his automobile toward the crossing at a rate of speed not greater than five or six miles per hour. Just before his automobile reached the first set of tracks of the railroad, plaintiff again brought his automobile to a complete stop, at which time and place he listened but could hear nothing that indicated to his mind the approach of a street car. He “looked south first on that track and then north” (the latter being the direction from which the street car that struck plaintiff was approaching). He heard no bell or warning of any kind prior to the time of the accident. From the place where plaintiff stopped his automobile the second time, to wit, just before reaching the first rail of the first set of tracks, plaintiff could see, and did see, up the north track for a distance of “400 or 500 feet”. He saw no street ear approaching. He then “put . . . (his) car in second and proceeded to cross the track, . . . just as slow as I could; ... I should judge four or five miles per hour”. After thus stopping his automobile for the second time, and after again starting it toward the crossing, while still traveling at a rate of four or five miles per hour, and at a point “about in the center of the two (sets of railroad) tracks”, plaintiff again looked; he also listened. At that time and place he neither saw nor heard the approach- of the street car. He “kept right on going”. It was “not until after . . . (he) got to the east rail of the west track” that plaintiff again looked north; and then it was that plaintiff saw the street ear approaching him at a distance from him of 100 to 150 feet. He “stepped on the gas and tried to get off the track”; but his automobile was struck—“just the tip of the right back fender”.