Dull v. Atchison, Topeka & Santa Fe Railway Co.

WHITE, J. In this action by a husband and father for the death of his wife and two minor children, the court instructed the jury to return a verdict for the defendants. From the judgment entered thereon this appeal is prosecuted.

The facts necessary for a correct understanding of the questions involved on this appeal may be thus briefly stated: On the morning of June 18, 1936, shortly after 8:30 o’clock, Ruby Marie Dull, wife of appellant, accompanied by their minor children, aged 9% and 3% years respectively, were riding in an automobile driven by Mrs. Dull. They were proceeding in a southerly direction on a country road, and while attempting to pass over an open grade crossing of respondent railway company, were struck by a passenger train approaching from their right at a rate of speed estimated to be in the neighborhood of sixty miles per hour.

It is unnecessary here to consider in detail the power of the court to direct a verdict, because this question has received the attention of the courts of this state on numerous occasions, and the principles were reviewed in Estate of Lances, 216 Cal. 397 [14 Pac. (2d) 768], quoted with approval in Estate of Flood, 217 Cal. 763 [21 Pac. (2d) 579], Suffice it to say that the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.

In support of his claim that the evidence was susceptible of reasonable inferences which should have required the court, without weighing that evidence, to deny the motion, we are directed by appellant to testimony that the deceased and her children were driving slowly on a clear day; that the rails of the single track were about two inches above the [475]fill-in or ballast between the rails, and that the ballast was rough and broken; that this was an open crossing, so far as Mrs. Dull was concerned, for sixty feet away from the track; that the driver of the automobile was in good health and a competent driver. Appellant further asserts that while the engine men of respondent railway company testified that the whistle was blown and the bell rung, several witnesses, claimed to be within hearing distance of the crossing at the time of the accident, did not hear the whistle or the bell; that the automobile approached the railroad crossing at a speed of approximately twenty miles per hour, slowing down to approximately one or two miles per hour, and finally, as the fireman testified, actually coming to a stop on the tracks. The fireman, who was situated on the side of the engine cab from which the automobile approached, testified that when he first saw the automobile come from behind some bushes and trees, the train was 150 yards away from the crossing and the automobile was about fifty or sixty feet from the tracks; that he immediately called out to the engineer to “hold her”, which in railroad parlance means to apply the emergency air.