Cortopassi v. California-Western Railroad & Navigation Co.

STURTEVANT, J. Joseph Cortopassi, while crossing a railroad track, was struck and killed by a gasoline locomotive. His surviving widow and minor daughter commenced an action to recover damages. The defendants filed an answer containing certain denials and pleading the contributory negligence of the decedent. The case was called for trial before the trial court sitting with a jury. After the jury had been impaneled counsel for plaintiffs made an opening statement. After he had finished, counsel for the defendants made a motion for a nonsuit. The motion was granted and from the judgment entered thereon the plaintiffs have appealed.

In their brief the plaintiffs have copied the proceedings in the trial court. In the brief of the defendants they recopied portions and parts thereof they have italicized. Portions pertinent to the issue presented on this appeal are set forth below. The parentheses are ours. “Mr. Hildebrand: Yes. May it please your honor. Ladies and gentlemen of the jury, I will make a brief opening statement what we expect to prove in this case. The deceased had worked for a good many years for the Union Lumber Company. ... He was in good health at the time of the happening of this accident and had worked that day. After finishing work on that particular day he had gone over to order or to arrange for the purchase of some lumber on the grounds there of the Union Lumber Company. In going over there he had gone through the yard of the Union Lumber Company on a path which was regularly used by the employees of the company and others. He was coming back there after making these arrangements when he was struck by this gasoline locomotive that was being operated by the California-Western Railroad. (Here follow specifiea[282]tions of negligence of defendants.) They were backing slowly down around this curve, according to the testimony, and Mr. Cortopassi toas walking so that his back in crossing on the pathway across the track, his back ivas in the direction from which they were coming. As he went to go across this track they came down around this curve and there was a logging train on the next track making a great deal of noise, puffing, and with a lot of cars there so that nothing much could be heard on the adjoining track, . . . The deceased with his back that way and with such slow moving car coming around the curve, was struck by this car without any lookout on the car and no conductor as the regulations required, and was killed. The deceased was a man thoroughly familiar with the premises, had been going back and forth on the pathway and other employees going that way for years. It was a well-known pathway to the yard and thoroughly familiar to everyone in the yard. (Here follows statement of damages.) Mr. Hoge: May it please the court the defense at this stage of the ease moves for a nonsuit on the basis of the opening statement made by the plaintiff in the case. According to the opening statement the deceased was entirely familiar with the premises and used the premises for many years. He stepped upon the track and with his back turned was struck by this train, proceeding very slowly. Under the law of this state deceased, under these circumstances was guilty of contributory negligence as a matter of law. . . . The Court: Motion for nonsuit on the opening statement will be granted.”