McCune v. Pacific Electric Railway Co.

DORAN, J. On February 25, 1945, about 8:30 p.m., Orville H. McCune, accompanied by Mrs. Bernice McCune as the only passenger, attempted to drive a 1940 Chevrolet coupe north across the' tracks of the defendant railway company at the intersection of Huntington Drive and Van Horne Avenue, a railroad grade crossing on the outskirts of the city of Los Angeles. The Chevrolet was struck by a two-car train proceeding easterly on Huntington Drive, operated by the defendant G. Beid for the railway company. The weather was clear and the roads were dry. The automobile was hit at its left door while on the first set of four railway tracks south of the center of the right of way; it was forced or carried some 75 feet and completely wrecked. Bernice McCune was instantly killed, and the driver, Mr. McCune, suffered serious injuries.

The present action involves two separate causes of action, namely, an action for personal damages and property damage, brought by Orville H. McCune alone; and an action for the wrongful death of Bernice McCune, brought by Orville H. McCune and three half-brothers of the decedent as heirs at law. The cause was tried before a jury, resulting in a verdict and judgment for defendants in both causes of action, from which judgment plaintiffs now appeal.

There is evidence in the record to the effect that the train was traveling between 15 and 25 miles per hour; that the driver, Orville H. McCune, was familiar with the crossing; that before starting to make the left-hand turn across the tracks McCune stopped, looked west and saw the train approaching some 200 feet from the crossing, after which plaintiff attempted to cross the tracks and the collision occurred as aforesaid. The record also discloses that after seeing the train approaching, McCune “did not again look at the train,” and did not again see it until it was about 10 feet away just before the collision. The train was about 50 feet from the crossing, according to the motorman’s testimony, when plaintiff started to make the turn across the tracks; the motorman anticipated that plaintiff’s automobile would stop until it started to cross the trades, and then applied the emergency brakes, stopping the train some 78 feet [203]beyond the point of collision. The motorman testified that at the speed the train was traveling it would take between 125 and 150 feet to stop with an emergency application of the brakes. It further appears that Orville H. McCune was 64 years of age and that Bernice McCune was 45 years old at the time of death. Mr. and Mrs. McCune had been married in 1940; an interlocutory decree of divorce had been granted Mrs. McCune in 1944, but no final decree had ever been entered.