Murray v. Southern Pacific Co.

NOURSE, P. J. On March 23, 1945, at about 6 :50 p. m., appellant was severely injured when he was struck by a slow-moving switch engine as he was walking along Fourth Street across the Southern Pacific tracks in San Francisco. Fourth Street runs north and south, and crosses the tracks at right angles. The tracks lie between King Street on the south and Townsend on the north, terminate in the Southern Pacific station located at Third and Townsend Streets and are numbered from 15 to 1, track 15 being nearest King Street.

Appellant, a member of the San Francisco Fire Department, had on many occasions used this route in the course of his duties and at the time the accident occurred was proceeding on foot from his regularly assigned station to another, the most direct route being across the tracks by way of Fourth Street. He walked north on the west side of Fourth Street to the railroad tracks where he found the street blocked by the “Daylight” on track 14 and the “Lark” on track 8. He walked through the vestibules of these trains and continued up Fourth toward Townsend Street until he was struck on track 5 by a switch engine moving west and away from the station.

Appellant based his ease on two theories of negligence, one the negligent operation of the engine, the other the failure of the presence of a flagman to warn him of the approaching engine. An ordinance pertaining to flagmen was introduced into evidence reading as follows: “Fourth Street and all other public streets mentioned herein shall remain open public streets subject to public use, except that Fourth Street may be temporarily closed to permit the arrival and departure of trains at the depot at Third and Townsend Streets when trains are too long to be accommodated in the space between such [109]depot and Fourth Street. A flagman shall always be stationed at Fourth and Townsend Streets and at Fourth and King Streets. ...”

The grounds upon which appellant seeks a reversal of the judgment are: (1) Insufficient evidence to sustain the verdict and (2) prejudicial error in the instructions. Most of the argument is devoted to the latter ground. Appellant claims that the case was tried on the two theories of negligence but that the court through its instructions presented only one theory to the jury and eliminated the question of respondents’ negligence because of failure to maintain a flagman, to the great detriment of appellant.

The chief objection was to the following instruction: “There are before you in this case three defendants, Southern Pacific Company, Edmund Carey, and Herbert Hambaugh. The charges made against each one of these defendants are the same. . . . Each defendant is entitled to the individual judgment of each and every juror as to his case, and to have his ease determined on its merits, irrespective of what determination may be made as to any other defendant, except in the one particular to which I shall call your attention. ... If there is no negligence on the part of Defendant Edmund Carey, the engineer, or on the part of Herbert Hambaugh, the fireman, and if you so find, it will be unnecessary for you to consider any other question in the case, and you will then return your verdict in favor of all of the defendants. ’ ’