Kilgore v. Southern Pacific Co.

MARKS, J. Plaintiff brought this action to recover damages which he suffered when he drove his.automobile into the side of a freight car standing on a switch across Walnut Avenue in Holtville in Imperial County. The case was tried before the court without a jury and judgment was awarded plaintiff in the sum of $1,035.50.

Walnut Avenue runs north and south and is a public street in the city of Holtville. It has a twenty-foot paved strip in its center. It is intersected at right angles by a main track, and three spur tracks, of defendant, two of the spur tracks being north of the main track. Plaintiff admitted having crossed these tracks from two to four times every day between October 1, 1931, and the date of the accident. The usual cross-arm warning signals were maintained by the defendant north and south of the tracks.

Northerly from a point about thirty feet north of the northerly spur track the roadway of Walnut Avenue was practically level. In that thirty feet it ascended fifteen hundredths of a foot. It then raised an additional thirty-nine hundredths of a foot to a point near the north rail of the northerly spur track nearest to the main tracks. On the evening of January 15, 1932, a train crew of defendant switched [508]to, and left standing on the spur track last mentioned an freight car fifty feet long and about twelve feet high so that it entirely blocked the Walnut Avenue crossing. Plaintiff drove his automobile into this freight car causing the injuries for which the trial court gave him judgment.

Plaintiff testified that the sight of one of his eyes was good; that the brakes of his automobile were in good condition; that its headlights were good and lighted the roadway one hundred feet in advance of the ear; that the night in question was dark but clear and the roadway was dry; that at 8 o’clock P. M. on January 15, 1932, he was approaching the railroad crossing and was driving south on Walnut Avenue at a speed of between fifteen and twenty miles an hour; that when within about forty feet of the railroad car he first saw it; that he moved to apply his brakes and commenced to do so when within about thirty feet from the ear; that he could not stop his automobile in the intervening distance and crashed into the freight car. The car had not been on the crossing more than three minutes prior to the accident.

Plaintiff testified that no warning of the obstription was given by any person. Defendant’s witnesses testified that two of its employees stood in the roadway on the north side of the car and by hallooing and waving lighted lanterns attempted to halt plaintiff. The trial court evidently rejected the testimony of these witnesses so we must accept plaintiff’s version.