Williams v. Atchison, Topeka & Santa Fe Railway

BURKE, P. J. On November 15, 1958, at approximately 3 a. m., a truck and trailer driven by plaintiffs’ agent collided [141]with defendant’s freight train at a single spur track crossing in the Mojave Desert near the Township of Boron. Plaintiff Merton Mead, owner of the truck tractor, filed an action for property damage, and plaintiffs Harry and Buth Williams filed a similar action as owners of the truck trailer. Both actions were consolidated for trial. Defendant filed a cross-complaint for property damage to its train. The trial court, sitting without a jury, found that plaintiffs’ negligence was the sole proximate cause of the collision; and accordingly, judgment was entered in favor of defendant both as to the consolidated actions brought by plaintiffs and defendant’s cross-complaint.

In the joint pretrial statement plaintiffs contended that the doctrine of last clear chance was applicable in the event that plaintiffs should be found chargeable with contributory negligence. On appeal plaintiffs concede that there was sufficient evidence to support the finding that plaintiffs, acting through their agent, were negligent. They contend, however, the evidence is insufficient to support a finding that their negligence was the sole proximate cause of the collision since the facts establish that the doctrine of last clear chance was applicable.

The applicability of the doctrine of last clear chance hinges upon certain testimony of the train engineer in charge, William Howland, who said he realized from his observation when the train was about 175 feet from the crossing that the brakes of the approaching vehicle were not taking hold; that he ordered Maxwell, an assistant who was actually operating the diesel locomotive, to apply the emergency brake when the engine was “touching the macadam” and the engine came to a complete stop within 40 feet blocking the entire highway. Plaintiffs urge that it was error for the trial court to ignore this testimony.

Plaintiffs contend that when engineer Howland noted the brakes of the approaching vehicle were not taking hold he had a “last clear chance” to avoid the accident but did not do so. Instead, Howland waited until the train was within a few feet of the crossing before ordering Maxwell to apply the brakes. Howland testified he arrived at the conclusion the truck brakes were not taking hold because he observed the approaching vehicle slow down and then start out again. When asked why he didn’t apply the emergency brakes at that time, Howland testified he observed the truck “was slowing down like some of them do when they come up and make what you call a grandstand stop.”