Lugo v. Atchinson, Topeka & Santa Fe Railway

BARNARD, P. J. This is a damage action arising from a collision between a locomotive and a truck.

The accident occurred at about 11:30 a. m. on June 6, 1952, at a point a mile or two north of Oceanside, where a blaclc-top road leading easterly from Highway 101 crossed the railroad tracks. This road was formerly the main access from the highway to Rancho Santa Marguerita, now Camp Pendleton. About 1943, the Marines established a new entrance to Camp Pendleton and placed a locked gate across this old road, just east of the tracks. Thereafter, this old road was used occasionally by certain lessees and permittees who were given keys to the gate by the Marine officials. In 1950, the defendant Santa Fe and the Navy, on behalf of the Marine Corps, entered into a contract requiring the “Government” to erect a gate to prevent the use of this crossing by the public, and to give the railroad 24 hours notice of any proposed use so that the crossing could be fagged, and further providing that the government was not to permit others to use the crossing without the written permission of the railroad. However, the road was used at times, without such notice being given. No notice was given on the occasion here involved.

On this occasion Roy Witman, who had a permit to run sheep in this area and had been given a key for this gate, had bought a load of hay from one Riggs. Earlier that day Witman escorted this truck through the main entrance to Camp Pendleton and to a point about 200 yards east of this locked gate. The truck was towing two trailers, the whole outfit being about 60 feet long, and was driven by Edward Lugo. He was accompanied by Baltazar Sandoval who was apparently his guest. After the hay was unloaded Witman offered to let them through this gate, since the outfit was too long to turn around in the space available, and opened the gate. He had in the past let several such trucks through the gate. There was a line of trees just north of the gate, extending along the east side of the tracks for some 200 to 250 yards, which obscured the view to the north. The truck came out of the gate, traveling about 3 to 5 miles an hour, and when it reached the main line track it was struck by a train traveling from Los Angeles to San Diego. Lugo [405]and Sandoval were killed. The distance from the gate to the main line track was some 60 or 65 feet, and there were no warning signals at this crossing.

Witman testified that he walked beside the front wheel of the truck looking for trains from the north; that it was a little difficult to see north; that the cab of the truck passed him when he was about half-way to the main track; that he then looked over the bed of the first trailer and saw the train coming about 450 to 600 feet away; that he turned and fled; and that he heard no whistle. A Marine guard stationed near the gate testified that he saw the truck come out the gate; that Witman came along the edge of the front bumper and nodded a couple of times; that when Witman was almost to the tracks, the cab passed him; that the witness then saw the train north of the trees; and that “he blew his whistle once.” The fireman testified that he was seated on the left side of the cab; that when he first saw it the truck was about 45 feet from the main track, and the train was from 450 to 600 feet away; that when he saw the truck he told the engineer to whistle and the engineer immediately did so; that when the truck kept coming he told the engineer to “hold it,” which means to apply the emergency brakes; that the engineer immediately put the brakes in emergency; that this was just before the collision; that the train was running about 70 to 73 miles an hour; and that there was a standard automatic bell on the engine which was- ringing continuously at all times since the train left Santa Ana. The engineer testified that he was seated on the other side of the engine; that he had made this run about twice a week for the last 10 years; that the train was going between 70 and 73 miles an hour; that when the fireman hollered to whistle he blew the whistle and it continued to blow until the collision occurred; that when the fireman yelled to “hold it” he applied the brakes with his other hand; that he knew that this crossing was occasionally used as he had seen flagmen there when it looked like they were going to move a truck or tank across the tracks; and that the automatic bell was ringing at all times since the train left Santa Ana.