Hines v. Johnson
264 F. 465
9th Cir.
1920
Check Treatment
HUNT, Circuit Judge

(after stating the facts as above).- The plaintiff in error has argued that the judgment should be reversed for the reasons: (1) That Johnson was negligent; (2) that the negligence of the “railway company, if any, was not the proximate cause of the death of Johnson; (3) that the driver of the automobile was negligent.

[1] It is said that Johnson was negligent because he was familiar with the crossing, had opportunity to observe the train moving, knew the speed of the machine, and that, although he gave no warning, he must have seen the string of box cars in ample time to have given warning to the'driver, and thus the collision might have been avoided. Granting that upon the trial of the facts there was force in such an argument, the difficulty with it now is that it is built upon inferences which plaintiff in error draws from the testimony, hut which are entirely at variance with those which the jury must have made and which are by no means unreasonable. There is direct evidence that the machine was headed directly north, and Ray, the driver, said that at about the time of the collision, and not before, he saw the box car, and “it seemed like a light came around the corner of the car.” He is corroborated by a witness, who said that the machine was headed directly north, and the car “was right into it.” Accepting it, therefore, that the automobile was pointed north, it is fair to say that there was no attempt to swerve around the car, and naturally, if no such attempt was made, the most reasonable explanation is that the cars were shoved out just as the automobile went upon the track, and that the machine was caught at a point east of the middle of the driveway between the east curb and the east rail of the street car *469line. An additional circumstance in support of this view is the evidence that the wind shield was broken, and that broken glass was found on the north side of the track, about 8 or 9 or 10 feet from the east curb of the street. In this connection we have carefully considered the evidence of the mathematical measurements taken by the railroad company after the accident. They are helpful to a better understanding of the exact relation of fixed objects, but they do not necessarily refute the testimony of the witnesses for the defendant in error as to the positions of the automobile and the car just'at the time of the collision. The whole situation presented a pure question of fact for solution by the jury in the analysis of the testimony, and as it was their exclusive province to determine what was the truth, it is not for this court to overthrow their conclusion. It is very clear that if the box car came as Ray said it did, and no signal was given, Johnson cannot be.held as a matter of law to have failed to exercise ordinary care. Allison v. Chicago, Milwaukee & St. Paul R. Co., 83 Wash. 591, 145 Pac. 608 ; 22 R. C. L. p. 973.

[2, 3] It is urged that, even if the railway company was negligent, such negligence was not the proximate cause of the accident. The reasoning of the plaintiff in error is that Johnson failed to look or listen, or to warn Ray, the driver, of possible danger, and therefore his conduct was equivalent to acquiescence in negligence of the driver, and thus the negligence of Ray became the negligence of Johnson. But again the question of what was the exact situation was for determination by the jury. Of course, the track itself was a danger signal, and it was the duty of Ray to approach the crossing with his machine under control, and to keep a vigilant lookout for any train that might be approaching, and it may be said that it was the duty of the deceased also vigilantly to look for an approaching train, and, if he saw one, or in the exercise of ordinary care could have seen one, coming, and failed to give any warning to the driver, he would be guilty of contributory negligence, which would har a recovery. But there is substantial evidence to the effect that the train was not visible until just the instant before the collision, and that there was no warning light given, and no intimation that a train was coming. There is the evidence that Ray was proceeding at a moderate rate of speed, with the automobile under control, and, there being nothing whatever to show that Johnson saw the train before Ray did, we think it but reasonable to infer that the train was not seen by Johnson or Ray, and 'hence that there was no opportunity to stop the automobile in time to avoid the collision. Southern Pacific Co. v. Wright, 248 Fed. 261, 160 C. C. A. 339.

[4, 5] The District Court was correct in charging the jury that the negligence of the driver of an automobile is not as a matter of law imputed to one riding with him as a passenger or guest, but nevertheless that one riding as a passenger or guest may not place his safety entirely in the keeping of the driver, but that he must exercise due and reasonable care for his own protection and safety. Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652.

*470[6] Plaintiff in error argues that a mathematical computation would demonstrate accurately the respective positions of the front car and the automobile at the instant preceding the accident. Upon the premise that the version of plaintiff in error is correct, the argument is sound. But the jury did not accept as accurate the testimony which was given as to the positions shown on the exhibit introduced by the plaintiff in error. Nor were they obliged to take it as true, for it was in conflict with the evidence given by the witnesses for the defendant in error. From their testimony there was ample ground for the belief that, if the car which hit the automobile had been within the zone of the headlights of the automobile, the inmates of the automobile would have seen the car in time to avoid the collision, even though it had heen pushed out into tire street without any warning on the part of the employés of the railroad company.

[7, 8] It is said that the court erred in refusing to give an instruction, requested by the plaintiff in error, to the effect that the railroad company had the same right to the use of Division street at the place of the accident that the public had. Undoubtedly the railroad company and the public had reciprocal rights with respect to the use of the street; but, as explained, the crossing was over a thoroughfare in the city, and it was the duty of the railroad company to give adequate notice by warning or signal of the approach of the train. The court clearly defined the obligation resting upon the railroad company, as well as the duty which devolved ■ upon those in the automobile, and made plain the general proposition included in the instruction to which the plaintiff in error objects.

We find no error, and affirm the judgment.

Affirmed.