6 Cal. App. 2d 738 | Cal. Ct. App. | 1935
Plaintiff sued for personal injuries sustained in a collision between an automobile which he was driving and a street car operated by the defendants. The trial court granted the defendants’ motion for a nonsuit, and plaintiff has appealed from the judgment.
The accident occurred late in the evening at a grade crossing in the outskirts of Los Angeles. Plaintiff testified that the visibility was good and there was no fog. The tracks of the defendant railroad company are laid on a private right of way along Broadway, a public street running north and south, and open for travel on each side of and parallel with the railroad tracks. The record shows that at the time of the accident the track construction was that of the ordinary steam railroad in open country.
According to the testimony given by plaintiff, and in which he was fully supported and corroborated by independent witnesses, plaintiff was driving an automobile at about 10 o’clock at night on a street which crossed the double tracks of the defendant corporation. When within 59 feet of such tracks he brought his automobile to a complete stop. Thereafter, traveling at a rate not greater than five or six miles per hour,
The plaintiff in crossing the railroad tracks where the accident occurred was required to use the same care and caution as is required of a person crossing the tracks of a steam railway. (New York L. Oil Co. v. United Railroads, 191 Cal. 96 [215 Pac. 72].) While it is the rule that a traveler about to cross such tracks must look for approaching trains at a point where such looking would be effective,
Whether or not plaintiff used ordinary care in selecting the place to look was a question of fact for the jury to determine. According to his testimony, he first became aware of the presence of the railroad tracks when he was 30 feet from them and he stopped his machine in a place of safety before entering upon the tracks, and looked and listened for approaching cars. When between the two tracks he again looked but saw no street ear and it was not until he was on the westerly track that he looked for the third time, and then saw a street car which, as far as he was aware, had neither rung a bell nor given any other warning of its approach, but which at that time was within 100 or 150 feet of the crossing.
Plaintiff’s explanation of his failure to see the approaching street car is that it was hidden by trolley poles 15 inches in diameter and erected between the two tracks 62½ feet apart. His contention is that these poles, from the point where he started to cross the two tracks, appeared in an unbroken line which concealed the street car. The evidence shows without contradiction that the tracks were on a curve north of the place of the accident. A passenger on the front of the street car testified that he saw the automobile “coming across toward the white fence” in the middle of the street. Apparently from this testimony the trolley poles offered no obstruction to vision of an object to the east of, or, possibly, exactly at the middle of the east roadway of Broadway, the point where plaintiff first knew that there were railroad tracks ahead of him. At just what point west of the center of Broadway the poles interfered with the view of the street car the record does not show. To sustain the'judgment, therefore, we must say that because the plaintiff at an unfamiliar crossing did not look to the north for cars exactly at the point where he first became aware of the tracks, which point may have been the only position between it and the tracks where he could have seen the ear, he was guilty of contributory negligence as a matter of law.
In a very similar case it was said, “We think the present ease is not one in which it can be said that the uncontradicted evidence forces the conclusion that the plaintiff approached the track without exercising the care which an ordinarily prudent man, situated as he was, would have exercised. . . . This being so, the jury had the right to believe from the plaintiff’s story, that he took advantage of every opportunity to learn of the possible approach of a train, and that, notwithstanding his precautions, he could not, and did not, know that a train was nearing the crossing until he was in a position of danger from which he was unable, by the exercise of ordinary care, to extricate himself. (Bilton v. Southern Pac. Co., 148 Cal. 443 [83 Pac. 440].) ” (Loftus v. Pacific Electric Ry. Co., 166 Cal. 464, 468 [137 Pac. 34, 35].)
The judgment is reversed.
Conrey, P. J., and Houser, J., concurred.