269 P. 529 | Cal. | 1928
Action by plaintiffs to recover damages for the death of their minor son, Dan Marchetti. The defendants Duree and Adair were the engineer and fireman, respectively, in charge of the train of the defendant the Southern Pacific Company at the time of the collision which resulted in the death of plaintiffs' son.
The deceased at the time of his death was eighteen years of age, and was then and for some time had been in the employ of W.L. Rodden, who was engaged in farming and stock raising near the city of Oakdale, in the county of Stanislaus. William J. Connors was also in Rodden's employ as his foreman. The deceased was killed in a collision with defendants' train while riding as a passenger in Connors' machine, as the two were traveling along A Street, in said city. At the close of plaintiffs' evidence the court granted a nonsuit, and from the order granting the same the plaintiffs have appealed. The opinion of the trial court, given at the time of granting the nonsuit, is set out in full in the record. It appears therefrom that the order was granted solely upon the ground that the evidence showed that the deceased was guilty of contributory negligence which proximately caused his death. In this we think the court was in error. The evidence bearing upon this point was undisputed. The deceased was riding with Connors under the latter's direction, and had no control whatever over the operation of the automobile in which they were riding. There can be no question of Connors' negligence in driving the machine on to the railroad crossing without taking the proper precautions to observe whether a train was or was not approaching. [1] The negligence of the driver of a machine, however, cannot be imputed to a passenger therein in the absence of any evidence showing that the latter exercised some control over the driver or that he possessed the power to supervise or direct the manner in which the automobile should be operated (Bryant v. Pacific Electric Ry. Co.,
[2] "A passenger in a motor vehicle approaching a railway crossing is under no legal obligation to warn the driver, either of the presence of the tracks or of an approaching train, the view being unobstructed and the driver reasonably competent and vigilant. And while it is the passenger's duty to look and listen, it is not his duty to stop for a successful observation, since he has no authority over the driver, but is wholly subject to the latter's action. The passenger has a right to suppose that the driver, on *683 approaching a railway crossing with which he is familiar, will exercise due care for the protection and safety of his passengers, and that even when so near the crossing as to be in apparent danger of collision with an oncoming train he will or may take some action which will avert an accident. Nor is the passenger obliged, even when the danger of collision becomes suddenly imminent, to displace the driver, seize the operating levers and endeavor to avoid the impending catastrophe. Nevertheless, it has been said that the passenger must look out for himself, and may not, in a place of danger, as on approaching a railway crossing, rely blindly on the driver. But a passenger in a machine operated by another cannot be said as a matter of law to have been negligent in not calling the chauffeur's attention to the danger of a collision."
Respondents contend that under the authority of Thompson v.Los Angeles etc. Ry. Co.,
[3] Respondents contend, however, that notwithstanding such error the order should be sustained on the ground that there was no evidence that the defendants were negligent in the operation of their train at the time of the collision. Ordinarily negligence is one of fact to be determined by the jury (Runkle
v. Southern Pacific Milling Co.,
[5] A third consideration bearing upon the negligence was the evidence in regard to the speed the train was traveling at the time and just before it entered the crossing. While the witnesses generally gave the speed at about twenty-five miles per hour, which might or might not be considered by the jury as a negligent rate of speed under all the facts and circumstances in evidence in the case, one witness, Mrs. White, testified that it appeared to her that the train was gaining on the car in which Connors and the deceased were traveling, and that at the time Mr. White stopped his car, the distance the locomotive was from the crossing "was as much again" as the distance the Connors' machine was from the crossing; that "the locomotive gained on the automobile at every instant. The locomotive entirely crossed the crossing before it collided with the machine." The evidence, without much, if any, conflict, was that the automobile was traveling, at the time Mrs. White observed it, at twenty-five miles per hour. The inference might be reasonably drawn from her testimony that the locomotive was traveling at a speed of fifty miles per hour at the time it entered the crossing and at the time of the collision. Taking this evidence as a whole, we do not believe the court would have been justified in holding that, as a matter of law, it failed to show that the defendants were negligent in the operation of the train across A Street. It at least tended to show negligence on defendants' part, which proximately caused the injury to deceased, and this is all that is required, when considered upon a motion for a nonsuit.
The order granting defendants' motion for a nonsuit is reversed.
Tyler, J., pro tem., and Preston, J., concurred. *687