In this action by a husband and father for the death of his wife and two minor children, the court instructed the jury to return a verdict for the defendants. From the judgment entered thereon this appeal is prosecuted.
The facts necessary for a correct understanding of the questions involved on this appeal may be thus briefly stated: On the morning of June 18, 1936, shortly after 8:30 o’clock, Ruby Marie Dull, wife of appellant, accompanied by their minor children, aged 9% and 3% years respectively, were riding in an automobile driven by Mrs. Dull. They were proceeding in a southerly directiоn on a country road, and while attempting to pass over an open grade crossing of respondent railway company, were struck by a passenger train approaching from their right at a rate of speed estimated to be in the neighborhood of sixty miles per hour.
It is unnecessary here to consider in detail the power of the court to direct a verdict, because this question has received the attention of the courts of this state on numerous occasions, and the principles were reviewed in Estate of Lances,
In support of his claim that the evidence was susceptible of reasonable inferences which should have required the court, without weighing that evidence, to deny the motion, we are directed by appellant to testimony that the deceased and her children werе driving slowly on a clear day; that the rails of the single track were about two inches above the
Appellant first contends that the evidence shows that respondent railway company negligently maintained this crossing in violation of the bounden duty of every railroad company to construct and thereafter maintain crossings over public highways on the line of its road in such a manner that the same shall be reasonably safe for persons lawfully and properly using it. In support of this claim appellant urges that the evidence shows that the rails of the track in question protruded some two inches above the fill-in or ballast between the rails and that the ballast was rough and broken up near both rails; that the evidеnce showed, in an experiment made subsequent to the accident, that when an automobile of the same make and type, traveling between one and two miles per hour, struck the rail, it stopped and “seemed to come back”. From this testimony, appellant аrgues that, remembering the fireman's testimony that Mrs. Dull’s automobile stopped on the track, the jury was entitled to draw an inference that the sole proximate cause of the accident was the dangerous and unsafe condition of the tracks as maintained by respondеnt railway company. No reasonable person, urges appellant, would drive upon the track and voluntarily stop thereon in front of a swiftly approaching
Appellant next asserts that conceding the deceased drove the autоmobile upon the tracks in front of the approaching train, nevertheless, if she saw the train coming, then formed a judgment as to its distance away and its speed and believed it was reasonably safe to make the crossing, but her judgment proved erroneous and she was struck, shе is not guilty of negligence as a matter of law, but that the question of her negligence is one for the jury. In this connection, Fireman Collins testified that he first saw the automobile when the train was about 150 yards from the crossing and the automobile was traveling about twenty miles per hour; that when the automobile was about fifty or sixty feet from the track it slowed down “almost to a stop” and then “proceeded to drive up on the track” and stopped, at which time the train was about sixty to eighty feet from the automobile. With reference to the conduct of the fireman after he saw the automobile, he testified: “Well, when I decided that she was going to drive up on the track—seen that she was—I hollered to the engineer to hold her,” which, the witness testified means “just what it says, to hold her to emergency—hold everything”. The fireman was' unable to statе how far the train was from the crossing when he called
We come now to a consideration of respondents’ claim that the deceased, in driving the automobile, was guilty of negligence that proximately contributed to the accident. We have already set forth a general statement of facts in the first pаrt of this opinion. There are minor details not included in the foregoing general statement, but we do not think it will be necessary to set the evidence out more fully than has already been done. From the facts as they are contained in the record, it appears that the deceased approached an open railroad crossing with a clear view of the tracks in both directions from a point sixty feet away from the crossing; that as she approached the railroad tracks she slowed down to about two miles per hоur, and then drove up a short incline and onto the tracks, where she was struck by the train. Driving an automobile which the appellant, who was the owner thereof, testified could be stopped within twelve or fourteen feet when going twenty miles per hour, and within about nine feet when going twelve or fifteen miles per hour, we find the deceased, according to the evidence, going twenty miles per hour when within five hundred feet of the crossing in question, and at a much slower speed for the last sixty feet, with an unobstructed view, still continuing to drive up to and upon the traсk in the face of the fast approaching train. With this picture, it would be idle to attempt to show ordinary care or prudence upon the part of the deceased. As a matter of fact, in order to justify the conduct of the unfortunate decedent, we would be first сompelled to overrule every known California case involving accidents at railroad crossings. Appellant relies largely upon an indulgence of the presumption of ordinary care and diligence on the part of decedent from all the circumstances of the ease and the natural instinct of self-preservation—and contends
Appellant next contends that under the doctrine of last clear chance the cause should have been submitted to the jury. However, the facts of this case do not call for the application of this doctrine, for it is apparent from the evidence that the deceased was driving her automobile very slowly and could have stopped at any time within a few feеt after she came into a position of peril. Therefore the negligence of the deceased continued until practically the exact moment of the impact, and plaintiff could not recover. Further, until this negligence of the deceased terminatеd, the doctrine of last clear chance has no application. In Holmes v. Southern Pac. C. Ry. Co.,
The final question presented is whether the negligence of the wife bars a recovery by the husband for the death of the minor children. It is the law that the contributory negligence of the mother is a defense to an action on behalf of the community to recover for death of the children, because in caring for the children she represents and acts for the community and for the husband as head of the community. And her negligence, if any, in earing for the children is the negligence of the husband. (Keena v. United Railroads of San Francisco,
The judgment appealed from is therefore affirmed.
York, P. J., and Doran, J., concurred.