Jackson v. Atchison, Topeka & Santa Fe Railway Co.

WARNE, J. pro tem.* This is an action by plaintiff and appellant to recover damages for personal injuries and property damage sustained as the result of a collision of plaintiff’s truck with a train operated by the defendant and respondent Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as the Santa Fe), occurring where the main line of the Santa Fe crosses Franklin Road in Merced County.

At the conclusion of the plaintiff’s case defendants’ motion for a nonsuit was denied. However, at the conclusion of the entire ease, the trial court granted defendants’ motion for a directed verdict. On granting this motion the trial court ruled that, while there was ample evidence of defendants’ negligence to go to the jury, the evidence also showed, as a matter of law, that the plaintiff was guilty of contributory negligence either by proceeding onto the tracks in the path of the oncoming train or by failing to leave the truck which had stalled between the rails of the Santa Fe track and remove himself from the area of danger.

Thus the question before us is whether there is any substantial evidence to support a verdict in favor of plaintiff, and if so whether there was a failure of plaintiff to exercise the care required of a reasonably prudent man which was a proximate cause of the accident.

The power of the court to direct a verdict is subject to the same limitations as its power to grant a nonsuit. (Pellett v. Sonotone Corp., 26 Cal.2d 705, 708 [160 P.2d 783, 160 A.L.R. 863]; Reynolds v. Willson, 51 Cal.2d 94, 99 [331 P.2d

[18648]].) And as stated in Ross v. Atchison, T. & S. F. Ry. Co., 141 Cal.App.2d 178 [296 P.2d 372] :

“. . . A motion made under section 630, .supra [Code of Civil Procedure], is properly granted only wlien, disregarding conflicting evidence and giving to the plaintiff’s evidence all the value to which it is legally entitled, and indulging in every legitimate inference, there is no evidence of sufficient substantiality to support a verdict for plaintiff. If the evidence is such that fairminded men might honestly draw different conclusions as to the existence of negligence on the part of defendants and of contributory negligence on the part of plaintiff, the question is not one of law but one of fact. . . .” Applying these rules of law to the facts most favorable to the plaintiff in the instant case we feel that the judgment must be reversed. '