Olmos v. Southern Pacific Co.

McCOMB, J. From an order granting plaintiff’s motion for a new trial in an action to recover damages for personal injuries resulting from a collision between an automobile operated by plaintiff and a passenger train of corporate defendant, defendants appeal.

These are the undisputed facts:

Plaintiff’s attorney, whose office was located in the courthouse building in Pomona, which building is situated within 200 feet of the railroad tracks upon which trains of corporate defendant are operated, filed an action for personal injuries against corporate defendant arising from a collision between an automobile operated by plaintiff and one of said defendant’s trains.

At the time of the filing of the complaint, plaintiff’s attorney requested1 that the action be transferred to the Pomona department of the superior court for trial. Thereafter the case was called for trial before a jury in the courthouse building of the superior court located in the city of Pomona.

The accident occurred during a fog, and among other questions involved was the amount of noise arising from the operation of corporate defendant’s trains. Frequently during the trial trains of said defendant passed on the adjacent track, and on several occasions it was necessary due to the noise to recess the trial for several minutes until the trains had passed.

During the cross-examination of plaintiff he was asked and answered without objection the following question:

[7671] ‘ Q. Have you been able to hear these trains go by today while we were on trial? A. Yes, I heard them.”

Again during the course of the argument to the jury, counsel for defendant made reference to the noise of the trains in the vicinity of the courtroom. No objection was made to such reference in the argument. Thereafter a verdict was rendered in favor of defendants.

Plaintiff later made a motion for a new trial upon the following grounds: (1) irregularity in the proceedings, (2) insufficiency of the evidence, and (3) that the verdict was contrary to the law and facts in that there was no evidence to show that plaintiff was guilty of contributory negligence. The motion was granted as to the first ground2 and denied as to the second and third grounds.