Plaintiffs appeal from a judgment entered on a verdict denying them recovery of damages for the death of their minor son in a railroad crossing accident.
As sole ground for reversal, plaintiffs urge that the evidence established as a matter of law that defendant railway company was negligent, and that such negligence was the рroximate cause of the fatal accident. But this appears to be the “usual fact case” for the jury’s determination of liability upon the controverted issues.
(Taylor
v.
Wright,
The record consists of the judgment roll and a settled statement from which appear the following facts: Appellants’ son died as the result of injuries sustained in a collision between one of respondent’s interurban trains and a truck operated by one Lester D. Dewey. At the time, decedent was in the employ of Mr. Dewey and was being transported to the latter’s place of business. The fatal collision occurred about 1 p. m. on August 28, 1946, at the intersection of 92d Street and respondent’s private right of way in the city of Los Angeles. The weather was clear. At the crossing point involved, 92d Street, running east and west, was 30 fеet wide, and the right of way, running north and south, was more than 100 feet wide. Graham Avenue paralleled the right of way on the easterly side, and it was 32 feet wide with curbs on both sides. On a pole at the northwest corner of Graham Avenue and 92d Street there was an automatic wigwag signal, and Graham Avenue itself was protected by a boulevard stop on its easterly side.
The right of way had six sets of rails, the first four of which at the trial were designated from east to west as A, B, 0, and D. The accident occurred when respondent’s southbound through train traveling on track O collided with the truck in which appellants’ son was riding as it crossed the right of way from east to west on 92d Street. The easterly rail of track C was 55 fеet from the westerly curb of Graham Avenue. The truck made a boulevard stop on the easterly side of Graham Avenue, crossed that street, and entered respondent’s right of way, proceeding over tracks A and B without stopping until it reached track O, where it was struck by the southbound train. There was no traffic ahead of the truck and nonе crossing in the other direction.
The truck was a 1936 Diamond T 2-ton, flat bed, open body *43 model with no stakes, sides or roof, and was regularly used by the owner to transport merchandise in his furniture business. At the time of the accident, appellants’ son and two other boys were sitting on the truck platform behind the cab. The impact of the collision hurled appellants’ son over his two companions and onto the ground, where he was struck by the train and suffered skull injuries from which he subsequently died. The point of impact was established as seven feet south of the prolongation of the north curb of 92d Street and 54 feet west of the west curb of Graham Avenue.
Lester D. Dewey, the driver of the truck and a witness for appellants, testified that traveling west on 92d Strеet, he made the boulevard stop at Graham Avenue, continued “straight across Graham” at “about 8 miles an hour” and was “headed into the Pacific Electric right of way” at the “92nd Street crossing”; that he was “approximately half way across” Graham Avenue when he “first saw the train,” which was then about “900 feet” away and “rolling [at] a pretty goоd rate of speed”—perhaps “fifty miles an hour”; that he did not know “whether or not the wig-wag was going” but “if it was, [he] didn’t see it”; that when he “made the boulevard stop” at Graham Avenue, his “brakes were operating all right ”; that after he saw the train coming and that he 11 didn’t have a chance to beat it [across],” he tried to stop as he started over thе tracks but without effect because of an unexpected and complete failure of his hydraulic brakes; that he “kept right on going,” rolling “very slowly”; that he then “pulled the emergency back, but [it] wasn’t good enough to stop [the truck] before it got on the track [C] . . . just, enough to catch the right front wheel of the front end of the truck”; that “at the time the train actually hit the truck, he [the motorman] probably wasn’t going over fifteen miles an hour, because he had already used his brakes [to] slow the train down.” In the course of cross-examination, Mr. Dewey stated that he “first . . . thought [he] might have time to beat the train across” but then he “saw it was traveling pretty fast” so he decided “as he reached ‘A’ trаck” to stop : that “if the brakes hadn’t [gone] out, [he] could have stopped [the truck] instantly ... at the speed [he] was traveling,” which was about eight miles per hour; that the stop would have been at “about lane £B’ ”; that he was “familiar with that crossing” and that was the “customary place for people to stop.”
*44 The motorman, Wilmer I. Kivett, testified in substance, as a witness for respondent, that as he approached 92d Street, he was operating two cars; that the sun was shining and for a distance of 2,000 feet north of the scene of the accident, his view of the intersection was unobstructed; that there was no traffic ahead of him and none crossing the intersection; that when he was about 600 feet away from the scene of the accident, he started braking and continued braking for a distance of 400 feet, thus reducing his speed to 25 miles per hour; that he released his air and started coasting when he first saw the truck, and continued to coast until he was about 75 feet from the scene of the actual collision, when he applied his emergency brake; that he was not braking at all for a distance beginning at a point 200 feet north of the intersection [when he first saw the truck] to a point approximately 75 feet from the intersection; that the truck was on the first rail of the tracks denominated A when he first saw it; that while he was approaching, he saw the truck cross tracks A and B without stopping; that at 25 miles per hour he could have stopped his train within 250 feet, and that he did bring it to a stop about 20 feet south of the south curb of 92d Street.
It was stipulated that this witness at the coroner’s inquest, which was held seven days after the accident, testified as follows: “I was southbound and had pinched down to the company speed of 25 miles an hour or less for the crossing and about 150 feet from the crossing I saw the truck enter the right-of-way. I thought the truck was going to stop and I released my air and at that time I was going about 25 miles an hour. Then, I saw the truck wasn’t going to stop so I put my train into emergency about 75 feet from 92nd Street and the truck rolled onto the рrivate right-of-way and the left front corner of the car caught the right front wheel and fender of the truck throwing it around and off the right-of-way.” He further stated at that time that when he “first observed” the truck, it was “at the west curb line of Graham” just “entering the right-of-way” and his train was about “150 feet north of 92nd Street”; that he “thought [the truck] was going to stop,” but he “couldn’t tell ... if [its] brakеs had been applied”; that “ [the truck] wasn’t traveling very fast”; that “the wigwags were in operation when [the train] entered the intersection” and he “assumed that, the truck was going to stop. ’ ’
Over respondent’s objection, appellants were permitted, to introduce into evidence certain train operating rules and regu *45 lations of the railway company, whereby it was required that motormen reduce their “speed ... a sufficient distance in advance” of a highway crossing “so that train will be allowed to coast on approach to crossing, to enable full braking power being obtained in emergencies.” The rules further provided that11 after speed of train has been reduced to speed applying [at the crossing] and there is no vehicle or other conveyance seen approaching that will conflict, brakes may then be released and train allowed to coast. ’ ’
In this state of the evidence, the trial court submitted to the jury for consideration, under appropriate instruсtions, the following matters for determination of respondent’s liability: (1) appellants’ charge of negligence against the railway company by reason of the conduct of its motorman; (2) respondent’s claim of contributory negligence affecting appellants’ right of recovery; (3) the question of the proximate cause оf the fatal collision; and (4) whether or not the accident was unavoidable. The jury brought in its verdict in favor of the railway company and judgment was entered thereon. Appellants’ motion for a new trial, made on the ground, among others, of insufficiency of the evidence, was denied. This appeal followed.
In contending that they arе entitled to a judgment as a matter of law, appellants urge these points: (1) the absence of any evidence in the record as to contributory negligence in bar of their recovery; (2) the liability of the railway company because its motorman was negligent and his negligence proximately contributed to the happening оf the fatal accident; and (3) the testimony of the motorman as an admission of liability. Appellants’ first proposition is correct, but their second and third claims involve the redetermination of evidentiary matters which were essentially questions of fact for the jury to decide.
As appears from the above recital of the evidenсe, respondent’s train was 150 to 200 feet from the crossing when the motorman first saw the truck enter the right of way and he “thought the truck was going to stop.” At that time the driver of the truck was aware of the approach of the train and admittedly intended to stop at the “customary place for people to stop”—on track B—to allоw trains traveling on the track immediately to the. east, track 0, to pass. Accordingly, the truck driver applied his brakes when on track A, as he was traveling but eight miles per hour, a speed which would
*46
have permitted his truck, loaded as it was at that time, to have “stopped instantly” if his brakes had not failed to work. There was nothing in these movements which would apprise the motorman, as he first saw the truck proceeding in the right of way, that it was not under perfect control, that it would not slow its speed to a complete stop at the customary place, as the driver admitted that he intended to do, and let the train pass.
(Korchak
v.
Pacific Electric Ry. Co.,
Nor does respondent’s above-noted operating rule avail appellants in establishing their right to recover because of the "happening of the fatal acсident. The rule was properly admitted in evidence as bearing on the standard of care respondent thought appropriate to insure the safety of others at its track crossings. (2 Wigmore on Evidence [3d ed.] § 282, p. 132; 3 Shearman & Redfield on Negligence, § 506, p. 1281.) While a violation of such rule would not constitute negligence
per se,
it would be a circumstance for the jury to consider on the issue of respondent’s negligence.
(Gett
v.
Pacific Gas & Elec. Co.,
In challenging the propriety of the motorman’s operation of the train, appellants argue that the situation which confronted him was one precisely anticipated by rеspondent’s rule, to the effect that he should not release the brakes on approaching an intersection when there is another vehicle seen approaching which “will conflict.” Accordingly, appellants argue that had he continued to brake his train instead of releasing the air when he first saw the truck enter the right of way, the accident could have been averted. But the evidence was such that the jury may have concluded that there was in fact no violation of the rule, and that the motorman exercised due care under the circumstances to avoid the collision with the truck. The motorman testified that he thought the truck was going to stop before reaching track C and yield the right of way to the train, and the jury could reasonably have inferred therefrom that the motorman justifiably regarded the truck as a vehicle that would not “conflict” with the train as it approached the intersection. Moreover, according to the motorman, the wigwag signal, set to operate “1000 feеt back” from the crossing, was oscillating in warning of the train’s approach and there was nothing to suggest to the motorman that the driver of the truck would not heed such warning.
(Billig
v.
Southern Pacific Co.,
The judgment is affirmed.
Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.