Spataro v. Southern Pac. Co.

DRAPER, P. J. This appeal presents a factual oddity in motor vehicle-train collision cases—an implied finding that the truck driver’s recovery is not barred by contributory negligence, but that his fellow employee, who rode on the right side of the vehicle and did not touch its controls, was eontributorily negligent.

Plaintiff Weeks was the driver, and plaintiff Spataro the relief driver, of a tractor-trailer combination owned by plaintiff Sudo. A locomotive of defendant railroad, operated by [780]defendant Larragoity, struck the vehicle combination. Weeks and Spataro were injured. Weeks brought an action for his injuries. Spataro and Sudo joined in another complaint in which the former sought recovery for his injury and the latter for damage to the vehicles. The actions were consolidated and tried to a jury. Verdict and judgment were for Weeks, but against Spataro and Sudo. Each losing party appeals from the adverse portion of the judgment.

With Weeks driving and Spataro seated to his right, the tractor travelled east on First Street, Oakland, parallel to three sets of railroad tracks. The nearest tracks were occupied by a standing freight train, two to three feet to the right of the tractor-trailer. The caboose of this train was at or just west of Fallon Street. Weeks stopped at the edge of Fallon Street. To assure that the trailer of his 60-foot long rig cleared the caboose on his intended right turn, he drove some 25-30 feet into Fallon and then turned to the south. As the cab cleared the caboose and until the tractor’s front bumper was at or near the first rail of the second set of tracks, it was travelling 3 miles or less per hour. Weeks “could have stopped as fast as I . . . put my foot on the brake. ’ ’ Spataro was looking to the rear to see that the trailer did not strike the caboose. He looked forward and saw a man waving his arms and pointing to Spataro’s right. Spataro looked in that direction and saw an eastbound locomotive. He shouted. Weeks then saw the engine, which immediately struck the tractor near the rear of its cab. Estimates of the speed of the locomotive varied from 15 to 40 miles per hour. We assume, as do the parties, that the verdicts turned on the issue of contributory negligence.

Spataro contends that there is no evidence of any duty owed by him which was not owed by Weeks, nor of breach of such duty and causal connection of breach and collision. In effect, he argues that the verdict in favor of Weeks compels, as a matter of law, a like result as to him. In reviewing the evidence, we resolve all conflicts in favor of respondents, and assume that the jury drew all reasonable inferences to support its verdict (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429 [45 P.2d 183]).