Speyer v. Southern Pacific Co.

DORAN, J. In this action for damages based on the alleged negligence of defendant, the court, at the close of [105]plaintiffs’ case, granted defendants’ motion for a nonsuit and, from the judgment that followed, plaintiffs appeal.

The pertinent facts are as follows: Edwin J. Speyer was driving an automobile west on Highway No. 60 at a point a short distance east of Ontario, where the Southern Pacific Railroad tracks cross the highway at right angles. The automobile collided with defendants’ locomotive which was crossing the highway, resulting in the death of Edwin J. Speyer and the injury of his brother, who was with him. The accident occurred at 3:40 p. m.; the weather was clear.

It is appellants’ contention, first, that the doctrine of last clear chance applied and that the appropriate question in connection therewith should have been submitted to the jury; second, that the evidence supports the fact, as alleged in the complaint, that defendant operated the locomotive in a wilful, wanton and reckless manner; and, third, that the question of contributory negligence should have been submitted to the jury as well.

The record reveals no salient or impressive conflict in the evidence. It appears from the record that deceased, when about 200 feet from the railroad crossing, passed a truck traveling in the same direction. In this connection, appellants’ brief recites the evidence as follows: “The truck which deceased passed while approaching the track was driven by Max W. Fischer a poultryman from El Monte, California. It was a G.M.C. one ton truck with a six by eight bed filled with poultry four crates high and more than ten feet from the ground. It completely obscured the engine from the occupants of the automobile while passing.

“Fischer testified he had been driving the truck at about 25 miles per hour. That he was about 300 feet from the track when he first noticed the engine. That it was standing 15 to 20 feet north of the highway. That when he got within 200 feet of the track and about the time deceased’s automobile passed him he saw the engine pass slowly by a light post some 10 or 12 feet north of highway.

“ ‘Q. Now when you first saw the locomotive where was it with respect to the highway? A. The first I noticed it was 15 or 20 feet from the highway. Q. "What did you observe about it. Was it moving or still or what? A.-It looked to me in the beginning it was standing still, and then it started to move a little. Q. How far in your judgment was your truck