210 P. 971 | Cal. Ct. App. | 1922
This appeal is from a judgment in favor of plaintiffs for damages sustained in a railroad crossing accident.
Defendant's railroad runs north and south through the city of Chico. Fifth Street crosses the railroad at right angles. Defendant's depot is immediately north of the street and its west wall is forty-four and one-half feet east of the easterly rail of the main-line track. Projecting from the west wall is a small extension window. From the photographs brought up, it appears that the distance from the west side of the window to the nearest rail is at least forty feet. The accident occurred in the middle of the afternoon. As the south-bound train was drifting in on the main line at a speed, according to the varying estimates of the plaintiffs' witnesses, of from five to fifteen miles an hour, Mrs. Reger, one of the plaintiffs, approached the crossing from the east in an automobile driven by herself. The side curtains were in place. About fifty feet east of the track, where her view to the north was obstructed by the depot, she brought her automobile almost to a stop. The defendant's baggageman, R. A. Betz, who was at the north edge of the street near the main track with a baggage-truck, then made a motion which she understood to be a signal to cross. Betz was facing south at the time and the signal given was "a rotary motion with his left arm in front of his body." Betz testified that when he first saw Mrs. Reger approaching the crossing he held up his hand for her to stop but that she did not see the signal; that he then made a gesture with his left hand to direct her attention to the approaching train but did not signal for her to cross. Appellant concedes that the implied finding of the jury as to the nature of the gesture is conclusive under the evidence. On seeing the signal, Mrs. Reger proceeded westerly at a speed of three or four miles an hour, in low gear, until the oncoming train struck her automobile.[1] She testified that "she knew about the time the trains were supposed to arrive there and . . . knew this train was about to arrive because the busses and express wagons were standing there"; that she *316
had frequently driven over the crossing and was "familiar with the tracks and trains that came through there in both directions at different times during the day"; that when Betz gave the signal to cross she "looked out of the side curtains" to the north and saw no train and then proceeded to cross; that she did not remember whether or not she again looked; that she was listening for the train but heard no bell or whistle; that she first saw the engine when it was about fifteen or twenty feet away and when the front wheels of the automobile had reached the easterly rail of the track. Other witnesses for the plaintiff testified that they heard the train whistle prior to the accident. At any time after reaching a point about forty feet from the nearest rail there was an unobstructed view along the main line to the north. Leaving out of consideration the signal to cross, the evidence presents a clear case of contributory negligence. (Koch v. Southern California Ry. Co.,
[2] Respondents contend, however, that Mrs. Reger was so far misled by the signal to cross that the finding of the jury on the issue of contributory negligence is conclusive on appeal. The judgment of nonsuit in the case of Koch v. SouthernCalifornia Ry. Co., supra, was affirmed on the ground that the plaintiff was not justified in relying exclusively upon the implied invitation of open crossing gates and the absence of warning bell or whistle. The court said: "While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact and the facts that no whistle was sounded and no bell was rung are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening and taking thought for his own safety. He cannot rely wholly upon them, and cannot recover without showing more as to his own conduct than that he so relied." In so far as concerns the question of contributory negligence, an invitation to cross, whether direct or implied, is important only as bearing upon the quantum of care *317 required of the traveler. Greater reliance is naturally placed in the positive signal of a flagman to cross than in the invitation which his absence from his post or the fact of open gates implies. "The fact; that a flagman signals a traveler to cross does not absolutely relieve the latter from the duty of looking and listening, but that fact may be sufficient to carry the case to the jury." (Elliott on Railroads, 3d ed., sec. 1661.) If it be conceded that Betz had authority to discharge the duties of flagman then, under the circumstances shown, it cannot be held that Mrs. Reger was guilty of contributory negligence as matter of law. Betz testified that when he first saw Mrs. Reger she was looking south down the track; that "there was an engine standing down there, and with steam up, and she was evidently watching it." She was under the necessity of giving some attention to the automobile she was driving and to the street ahead. She listened for the train and did not hear it, though others did. She looked before attempting to cross, though from a point where she could see but 150 feet northerly along the track. "The mere fact of looking and listening is not always a full performance of the duty incumbent on the traveler, for he must also exercise care to make the act of looking and listening reasonably effective, and must usually continue to be on the lookout and exercise his faculties until he has crossed." (Elliott on Railroads, 3d ed., sec. 1661.) "But it cannot always be said that he is guilty of contributory negligence as matter of law because he looked and listened from one point rather than another, or because he did not continue to look and listen at all times continuously for approaching trains, where he was misled by the company or his attention was rightfully directed to something else as well." (Id., sec. 1662.)
Appellant contends that it is not liable for the consequences of the negligent signal because in giving it Betz was acting without the scope of his authority and not in the course of his employment. The defendant had not authorized him to act as flagman. Neither had it at any time maintained a flagman at the crossing. Respondents urge that Betz had implied authority to control traffic during the movement of trains across the street. About 125 feet south of the center line of the street there was a standpipe from which the engines of south-bound trains were supplied *318 with water. It was the custom of such trains to stop when the engine reached the standpipe, thus blocking the street, the baggage-car then standing across the center line of the street. For the purpose of loading and unloading baggage, Betz was accustomed to run his hand-truck from the depot to a point where this car was expected to stop. Betz testified that he was not directed by the defendant to regulate traffic at the crossing and was not "told by anyone to do anything concerning the stopping or starting traffic across that street and crossing"; that the station agent hired him and took him to the baggage-room and told him what to do therein and to "put the baggage on the train and take it from it and keep the books right," and that "the man that was working in the baggage-room at that time showed" him what to do in connection with handling the baggage; that hundreds of machines drive up and stop from five to fifty feet from the track; that "very seldom a train goes by but what a machine comes up and stops"; that at the time of the arrival of the afternoon south-bound train "there is sometimes none, sometimes two or three, and sometimes six or seven"; that it is sometimes necessary for him to ask automobile drivers to back away from the track to enable him to run his truck to the baggage-car. Three witnesses for plaintiffs gave testimony relative to the practice of the baggageman in signaling travelers. J. H. Bogges testified that, off and on for two or three weeks, "he had seen Betz signal persons driving along the street to stop; that he has made motions to me and I have seen him make motions to others. . . . Motions to stop." J. A. Brown testified that for a period of eighteen months he had frequently seen the baggageman hold up his hand for travelers to stop, "that a train was coming, or something like that. . . . I think I have seen him motioning for people to go ahead but I don't know for certain. . . . When he comes along with the trucks, if there is anyone in the road, he generally whistles or something like that to get them out of the way"; that he did not go out into the street to signal people especially but that he signaled them to stop if he happened to be there; that he did not make it a practice to signal people except when he was preparing to get baggage from the train. John H. Murphy testified: "I have seen him [the baggageman] on several occasions regulate traffic to *319 the extent that [when] he was getting his trucks in position automobiles would come up practically opposite the first track there and he would have to move them out of the way back in the street so he could put his trucks into position in order to take baggage out of the train, and sometimes he would go out ahead and move the automobiles or wagons that was there just as the train was coming in; he would move them back and put his trucks in there, and would generally holler 'gangway' or something like that. . . . I have seen a number of baggagemen there and they had to do that. . . . I have been there at the depot day in and day out and I have occasionally seen him regulating traffic more than once. . . . Q. The only regulation of traffic which you have seen him make was to get the people out of the way so he could get his trucks out? A. Not only people but I have seen him regulate vehicles there. Q. Those vehicles that you speak of, was that the through traffic or the vehicles coming up for the train? A. No, it was through traffic, and the vehicles that there were there also. Q. These vehicles going along Fifth Street across the track? A. Yes, sir, people going along Fifth Street that intended to keep on going. Q. You do not seem to indicate that he got out back of the station? A. No, sir; he would have to move them back to get the American Express wagons up there. Q. I do not see how he regulated through traffic, if a man was going through with his automobile, did he go out and stop him on account of his truck? A. No, sir; that is not it, but they came up too close to the tracks so he couldn't get through. Q. They would stop their cars and wait for the train to pass? A. Yes, sir. Q. And he would regulate them? A. He would back them up so he could get through, if they were in his way." Mrs. Reger testified that she had never "been stopped at that crossing or signaled at that crossing before" by the baggageman or anyone else. There is no testimony tending to show that Mrs. Reger knew, prior to the accident, that Betz or any other employee of the defendant had ever signaled any traveler either to stop or to cross.
Within the scope of his authority as baggageman, Betz was the agent of the defendant. An agent has authority "to do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his *320
agency." (Civ. Code, sec.
[3] The authority of a baggageman to act as flagman may, of course, be proved by circumstantial evidence. "One customarily permitted to act as flagman, although not employed for that purpose, may render the company liable for his negligence." (Elliott on Railroads, 3d ed., sec. 1651.) If, though not expressly authorized, he customarily acted as flagman with the knowledge of the defendant, or for such length of time as would justify the inference that the defendant, in the exercise of reasonable oversight of the conduct of its employees, ought to have known that he was so acting, then the defendant would be liable for the negligent discharge of such assumed duty. InWalker v. Hannibal St. J. R. Co., 121 Mo. 575 [42 Am. St. Rep. 547, 24 L. R. A. 363, 26 S.W. 360], it is said: "In order to make defendant liable for the act of the baggageman for acts of negligence committed not in the line of his employment, it must be shown that he either had express authority to transact the business connected with the injury, or that defendant, by its officers, knew that he, as its agent, was so engaged for such length of time as would justify the presumption that he was authorized to so act." The only act of negligence relied on by respondent is that of giving the signal to cross. The burden was on the plaintiff to prove, not only that the negligent signal was given, but that the baggageman was authorized by the defendant to give it. The evidence falls far short of showing, except by the most strained interpretation thereof, that the baggageman had ever acted as flagman, or that he had ever signaled a traveler to cross the track, except in the single instance involved *322
in this action, or that he had ever signaled travelers to stop their vehicles or to back them away from the track, except for the purpose of making room for the movement of his baggage-truck. The evidence does not show that Betz had authority, either express, implied, or ostensible, to act for the defendant in giving the signal to cross. "Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." (Civ. Code, sec.
[5] After the accident the defendant retained Betz as baggageman. Respondents contend that his retention constituted such a ratification of his act as to make the defendant liable for the consequences thereof, citing the case of Edmunds v.Atchison etc. Ry. Co.,
The judgment is reversed.
Anderson, J., pro tem., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 11, 1922.
All the Justices present concurred. *324