Eastteam v. Hull

PEEK, J. Plaintiff appeals from an adverse judgment entered pursuant to the jury’s verdict in an action for personal injuries.

The facts, which are not in dispute, show that defendant was driving his automobile east on Talmage Road, a state highway running east and west in Mendocino County, at or near a point where the highway intersects at right angles a grade crossing of the Northwestern Pacific Railroad. The highway at this point is approximately 21 feet wide, straight, level, and surfaced with asphalt, and at the time of the accident was not posted.

As a result of the injuries he suffered, which included a brain concussion, plaintiff was unable to testify concerning the events immediately preceding the accident nor to give any of the facts and circumstances surrounding the same. His only testimony, except that having to do with his injuries, was that at the time of the accident he was employed by the railroad company as a section foreman; that he remembered receiving a call advising him that signals at the crossing were not lighted; and that he left his home at about 7 p. m. to go to the crossing and repair the same.

Defendant testified as follows; He and his wife were driving easterly on Talmage Road behind a pickup truck. When the truck turned off of the highway approximately 200 feet west of the crossing, defendant accelerated his speed to about 30 miles an hour. He met a westbound ear 50 or 100 feet west of the crossing. A second westbound car, driven by Orville Elliott, was about 250 or 300 feet east of the tracks. It was dark and he was driving with his headlights on low beam. During the last 100 feet of his approach to the crossing [218]Ms view of rail traffic approaching from either side was limited to about 200 feet by reason of buildings on either side of the highway. When he was about two ear lengths from the crossing, he first saw the plaintiff who was a step from the north edge of the pavement and was running. At that time the Elliott car was approximately 75 to 170 feet east of plaintiff. Defendant applied his brakes and turned slightly to the right. Plaintiff kept the same pace and appeared to be looking east. About six feet east of the crossing defendant’s automobile collided with the plaintiff and carried him along for approximately 30 feet to where the defendant brought his car to a stop and plaintiff fell to the ground in front of the car.

A highway patrolman, who arrived at the scene of the accident shortly afterward and conducted an investigation, was called by plaintiff. He testified he observed tire marks made by defendant’s car extending 48 feet in the eastbound lane with more footage on the east side of the tracks than on the west and with a gap in the marks where the car crossed the tracks. He found plaintiff lying on the southerly edge of the pavement in front of the defendant’s car which was then approximately 5 feet south of the center lane. This testimony was the only evidence offered by plaintiff relative to the facts and circumstances surrounding the accident.