Emmolo v. Southern Pacific Co.

PEEK, J. This is an appeal by defendants from a judgment in favor of the plaintiff in an action to recover damages for injuries sustained by him as the result of a collision between plaintiff’s truck and defendants’ train. Defendants’ answer denied plaintiff’s allegations of negligence and affirmatively alleged that he was guilty of contributory negligence. There were two trials. The first jury was unable to agree and was discharged. The second returned a verdict for plaintiff. Defendants ’ motion for a new trial was denied and the judgment which was entered pursuant to the verdict forms the basis of the present appeal.

Two issues are presented by appellants, (1) that plaintiff was guilty of contributory negligence as a matter of law and (2) that the provisions of section 486 of the Civil Code relative to the sounding of warning devices do not apply to the crossing here involved, and therefore the trial court [89]erred in instructing the jury that the failure of defendants to give any warning signal constituted negligence on their part. Our examination of the record leads to the conclusion that neither contention can be sustained and that the verdict and judgment should be affirmed.

A summary of the evidence disclosed by the record shows that immediately prior to the accident plaintiff was driving a 1%-ton truck to a farm leased by him and located approximately 6 miles north of the city of Napa. The truck, which was comparatively new and in good mechanical condition was loaded with farm equipment as was the trailer attached to it. The overall length of the truck and trailer was approximately 49 feet. Access to the farm is by a lane, which also serves an adjacent farm and runs at a right angle from a state highway which parallels a branch line of the defendants’ tracks. To reach the farm it was necessary to cross a rather narrow bridge before crossing defendants’ tracks, which tracks are about 50 feet westerly of the highway. No gates or other obstruction were maintained at any "point between the highway and the farms. There was no warning device or sign at the crossing. However the defendants did maintain one of the customary signs at rural crossings advising that permission to pass over the right of way was revocable at any time. The road or lane was open at all times. Apparently because of the length of the equipment and the width of the lane and bridge, plaintiff, in order to turn from the highway into the lane, was compelled to make a wide sweeping turn necessitating the use of the entire width of the highway in so doing. Immediately before commencing his turn he stopped approximately 50 feet north of the entrance to the lane to allow an employee to alight from the truck to control traffic while plaintiff maneuvered the equipment. As he waited for the employee to take a position on the highway, plaintiff looked northwesterly through the right front door window and rear window of the truck. His vision, according to his testimony, was obscured to “some” extent by trees and brush along defendants’ right of way, approximately 250 to 300 feet from where his truck was stopped. How far he could see past the obstruction does not appear, although the record does disclose that the tracks are straight for a considerable distance, both north and south of the crossing. Neither seeing nor hearing a train he proceeded into the lane and across the bridge. The width of the bridge