206 P. 481 | Cal. Ct. App. | 1922
This is an appeal by the defendant from a judgment against it for thirty thousand dollars. The plaintiff is the administratrix of the estate of C. P. Schooley, deceased, and sues to recover for the death of her intestate caused by the alleged negligence of the defendant in the operation of its street railway.
The complaint charged that deceased was run over and killed by one of defendant's street-cars at a point near the westerly intersection of M and Tulare Streets, in the city of Fresno, and alleged that his death was caused by defendant's negligence. The alleged negligent acts were specified in six different subparagraphs, substantially as follows:
1. Excessive rate of speed of the street-car. 2. Motorman failed to keep a lookout and hence failed to discover the deceased upon the track in time to avoid running over him and failed to use proper care in stopping the car after discovering deceased's peril. 3. The brakes and other safety appliances upon the car used for stopping same were worn *707 and defective. 4. Car was equipped with an old, defective, out-of-date, insufficient, and inadequate front fender, on account whereof the deceased was not protected but instead was run over by the wheels of the car. 5. Car was not equipped with an automatic fender such as was in general use, by reason whereof the deceased was run over by the front wheels of the car. 6. Car was not equipped with up-to-date automatic air-brakes such as ordinarily used, on account whereof the motorman was unable to stop the car.
The defendant denied each specification of negligence and alleged that the collision and resulting death of the deceased were brought about by his own contributory negligence.
The place of the collision is in the business district of the city of Fresno and the point where Schooley was attempting to walk across the track was not upon a regular crossing, nor at a place provided for or used by pedestrians in crossing the street-car tracks. Tulare Street is one of the principal business streets of Fresno, running generally east and west. It is crossed at right angles by K Street, L Street, and M Street, in the order named, from west to east. The deceased resided on the easterly side of M Street and at the time of the collision was on an errand from his home to a grocery-store located on the southerly side of Tulare Street near the center of the block between L and M Streets, and was pursuing a diagonal short-cut in a southwesterly direction from his home to the store.
The defendant operates two street-car tracks on Tulare Street, east-bound cars running over the southerly track or "toward the Santa Fe depot" and west-bound cars over the northerly track or "toward the Southern Pacific depot." The deceased, while attempting to cross Tulare Street in a diagonal direction at some point, between the crossing on M Street and an alley between L and M Streets, was struck in the back, a little to the left side, by a west-bound car which came from his rear. At the time he was struck he was upon the first track that he attempted to cross. The evidence is that he was struck by this car immediately after he stepped upon the track. True, one witness stated that deceased was approximately in the middle of this first track; the others stated that he was just over the first rail, but this variance is of slight importance because the approximate width of a street-car *708 track being a matter of common knowledge, it is plain that whether deceased was in about the middle of the track or just over the edge of the first rail when he was struck, he must have stepped over the first rail he reached immediately in front of the approaching street-car. In other words, he stepped from a place of safety into imminent danger. Traffic was heavy on the street at the time and place of the collision. The deceased was a man of the age of forty-four years and had been employed as a boilermaker for twenty years. The plaintiff, who was his wife, testified, upon being examined as to his hearing, that it was better than the average boilermaker's. He had, however, sustained an injury to his left eye. This was caused by particles of steel getting into his eye in the course of his work, which had seriously impaired the sight of this eye. This eye was the one nearest the street-car which struck him. As deceased stepped over the rail, his head and face were away from the car and the car struck him in the back, slightly to the left side. These facts are agreed upon by all the witnesses who testified regarding them.
We shall now discuss in some detail the proof made by plaintiff in support of her action. The witness Longuevan testified that he was riding on "the front platform of the east-bound car, and noticed the car coming from the east, going west with a man walking diagonally toward the street-car track, that is, the track on which the west-bound car was running. After taking, I should judge, six or eight steps, possibly more and may have been a few less, he got approximately in the middle of the car track, and was struck in the back by the street-car, knocking him forward on his face, and apparently rolled him up like a ball, until he got underneath the front fender, and it appeared to me that he had also gotten partly under the wheel-guard. . . . In the meantime, the car had been brought to a halt and likewise our car had been brought to a halt and I got off." In response to further questions, this witness testified that he judged the car which struck deceased was going about fifteen miles an hour; that he thought the car ran between twenty and thirty feet after striking deceased; that when witness first saw deceased, deceased was from six to eight feet from the track on which he was struck and was walking diagonally; that he saw him go under the front fender and *709 apparently he went under the wheel-guard, but as to this latter fact the witness was clearly unable to give any satisfactory information, as he did not go near the scene of the accident after the car stopped, but left the car on which he was riding and went home, not desiring to see more of this ghastly occurrence. This witness admitted that he had stated at the coroner's inquest, on the day after the accident, that he was unable to judge the speed at which the car was going, and on cross-examination he admitted that deceased had just gotten over the first rail when he was struck.
The next witness was J. P. Langston, who testified that his business was "air brakeman and safety appliance" and that he was employed by the Santa Fe. His testimony was confined entirely to measurements regarding the fenders on the car and descriptions of these appliances which we shall not consider here, for the reasons which will later appear.
Frank Digioia was next produced on behalf of plaintiff. He was the conductor on the car which struck Schooley. He stated the car was going at about six or seven miles an hour; that the car came to a sudden stop; that he got off the car and found Mr. Schooley lying flat on his back; that he was in between the slat-fender and the pilot-board. It might be stated here that the car was equipped with two safety appliances or fenders, one a so-called "slat-apron" in front, and wheel-guards to prevent bodies from being mangled by the wheels of the car. A detailed description of these appliances is unnecessary here under our view of the law governing this case. This last witness stated that the body had gotten under the slat-apron but had not passed the wheel-guard.
The witness Peterson testified that he was on the front platform of the car which struck Schooley; that he saw the man when he was just stepping on the car tracks; that the car was going about twelve or fifteen miles an hour; that the man was crossing the track diagonally and was struck in the side; that he was walking at an ordinary gait. This witness did state that when he saw deceased after the accident the body was partly under the car, but he admitted that at the coroner's inquest, the day after the accident, he had testified that the body was not under the car. It also appears that immediately after the accident this witness made a statement in his own handwriting to the *710 defendant company. He admitted on the stand that in that statement he had written that the accident was due to the "carelessness of the victim" and that the deceased was entirely at fault.
The physician who examined the body of deceased at the coroner's office testified for plaintiff and stated that he had found "lacerations on the face, a broken jaw and several ribs broken; that his chest was crushed in and the jugular vein in the neck punctured by one of the ribs." That the punctured jugular vein caused deceased to bleed to death. The balance of the testimony for plaintiff was that of expert witnesses and had to do solely with the different kinds of fenders in use upon street-cars. The substance of this testimony was that "Eclipse" and "Worcester" fenders are projecting fenders and are the ones in common use in Los Angeles and San Francisco. These were described in detail and photographs introduced. Upon cross-examination it was admitted that wheel-guard fenders, which was the type used upon the cars of the defendant, were in use to some extent in Venice, Pomona, Long Beach, San Bernardino, Santa Monica, Riverside, Redlands, Pasadena, San Francisco, and other places.
[1] The foregoing is the substance of the testimony offered on behalf of plaintiff. That testimony shows beyond question that the deceased was negligent in stepping upon the tracks of the defendant company, directly in front of an on-coming car, which was plainly in view at the time he stepped upon the track if deceased had chosen to glance in its direction. We think that the negligence of deceased is not only overwhelmingly established by a perusal of the entire record, but it is sufficiently established upon an examination of plaintiff's own evidence. Taking the highest estimate of the speed of the car — fifteen miles an hour — it is plain that even if deceased was not struck until about the time he reached the middle of the track (although the testimony strongly leads to the conclusion that he was struck immediately upon stepping over the first rail) he must have stepped over the rail into a place of danger when the car was practically upon him and at a time when it was too late for the motorman to have stopped the car or for any appliance to have saved a dangerous collision. Surely, under the language of the cases hereafter cited, and under any rational *711 system of law, defendant could not be charged with a duty to anticipate that anyone would suddenly step from a place of safety on to the car tracks in the middle of a block, directly in front of an approaching street-car.
[2] We think such gross negligence on the part of a pedestrian will bar all right of recovery for any injuries which he may sustain. It is said in 25 R. C. L., p. 1285: "However, where a foot-passenger walks or steps directly in front of an approaching car and is struck the instant he sets his foot between the rails there is but one inference that can reasonably be drawn from that fact, that is, the inference of contributory negligence." Cited in support of this doctrine, among other cases, is the case of Driscoll v. Market StreetCable Ry. Co.,
In the Driscoll case it is pointed out that the question of whether or not the negligence of the pedestrian did contribute to his injury is generally one upon which there is conflicting evidence, which makes it difficult for a railroad company which was itself guilty of negligence at the time of the accident to relieve itself from an unfavorable verdict. We recognize this rule, and so we have discussed herein only the plaintiff's evidence upon this question of deceased's negligence. Quite apart from the testimony offered by defendant, some of it from disinterested witnesses, we think it must appear, without conflict, from plaintiff's own evidence, that her intestate was negligent and that such negligence was the proximate cause of his death. Under such *712
circumstances there can be no recovery. (Sec.
In the case of Lee v. Market Street Ry. Co.,
[3] It is also well settled in this state that a pedestrian undertaking to cross street-car tracks by a diagonal route at a place other than regular crossing must exercise greater care than if he were attempting to cross directly over the street upon a regular sidewalk crossing. (Sheldon v. James,
[4] In an action for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence, it is incumbent upon plaintiff to make out a prima facie case in his own favor showing that the damages claimed resulted from the defendant's negligence and where it affirmatively appears from his own evidence that deceased's want of due prudence was the proximate cause of the injury plaintiff cannot recover. (Dufour
v. Central Pac. R. R. Co.,
Under these facts the refusal of the trial court to give, upon the request of the defendant, two instructions stating that the deceased was negligent as a matter of law and could not recover was prejudicial error.
[5] Under our view with reference to the negligence of deceased the question of defendant's negligence becomes immaterial, because the law of comparative negligence which obtains in some states is not recognized by the courts of this state. (Sego v. Southern Pac. Co.,
There is no proof that the motorman failed to keep an outlook or that he failed to use proper care in stopping the car after discovering deceased's peril. Indeed, it is plain that if the deceased stepped over the rail and was almost instantly struck, as appears in the present case, then no outlook which the motorman could possibly have kept would have enabled him to stop the car in time to avoid the accident. Deceased was not in a position of peril until he stepped upon the rail and he could not have taken more than a step or two, going at an ordinary gait, before he was struck. Until almost the moment he was struck, then, no outlook would have disclosed him in a position of danger, for he was not in such a position. This negatives any possibility that any failure to keep an outlook, if such there was (and on that matter the evidence is to the contrary), could have contributed to the accident. There is not the slightest evidence that the motorman failed to use proper care in stopping the car after discovering deceased's peril, or that the brakes or other appliances for stopping the car were worn and defective. There is no evidence that the car could have been stopped in a shorter distance nor that any other car otherwise equipped could have been stopped more quickly. Furthermore, there is no proof that the deceased was run over by the wheels of the car. The nearest approach to such proof is in the testimony of a witness who at the time of the accident was on a car going in the other direction, who stated that itappeared to him from a distance of about seventy-five feet that the deceased had gotten under the car, but this witness admitted that he did not go nearer to the scene of the accident after the car stopped, but hurried away so as not to see the injured man. His testimony, then, as to what his impression was at that distance is without weight in view of the evidence of several eyewitnesses who saw the position of the body when the car stopped and who testified that the body was not under the wheels nor under the car. It is apparent, then, that the only possible theory for the judgment is that the jury believed the fenders upon the car were improperly constructed and that this condition was the proximate cause of the injury.
[6] Now, if by any course of reasoning, in the light of defendant's evidence on this subject, the jury had been *715
justified in concluding that the fenders and safety appliances on defendant's car were not reasonably well suited for the purpose for which they were intended, nevertheless, we think it cannot be successfully contended, under the facts of this case, that this matter was the proximate cause of the injury and death, for it conclusively appears from all the evidence that the negligence of deceased was the proximate cause of his death. (Craven v. Central Pac. R. R. Co.,
Under such a state of facts, we are unconcerned with the contradictory opinions of numerous witnesses produced by both sides as to the relative merits of different types of fenders or safety appliances. It is admitted that the defendant was under no duty, statutory or under the common law, to equip its cars with any particular kind of fenders. But we may go a step further and point out that even if defendant had been violating a statute by the use of the fenders attached to this car, the presumption of negligence raised by such unlawful conduct would only furnish ground for a recovery where it was the proximate cause of the injury. (McKune v. Santa Clara V. M. L. Co.,
[7] Because of the conclusions we have reached regarding the matters herein discussed, it is unnecessary for us to discuss all of appellant's specifications of error. We shall mention merely an error in an instruction, which, together *716 with the other matters herein discussed, compels a reversal of the judgment. The jury was instructed "that if they find from the evidence in this case that the deceased at the time of the accident and at the time he met his death was guilty of negligence in going upon the track of the street-car, but should they further find that said car at the time was not provided with a suitable fender or appliance placed in front or attached to the trucks of such car or dummy for the purpose of removing and clearing obstructions from the track and preventing any obstacles, obstructions, or persons on the track from getting under such dummy or car and removing the same out of danger or out of the way of such dummy or car and that it was negligence on the part of the company to so operate said car without such suitable fender or appliance; and if they further find that if said car had at said time been provided with such suitable fender or appliance, the deceased notwithstanding his negligence, if any, in getting upon said track, would not have been killed, then the defendant is liable to the plaintiff for the damage occasioned by his death and it is the duty of the jury to find a verdict in favor of the plaintiff."
The foregoing instruction is in conflict with the cases hereinbefore cited, and is also in direct conflict with the case of Waterman v. Visalia Electric R. R. Co.,
There is no theory of the instant case under which the above-quoted instruction would have been proper. Appellant suggests that it was given under the doctrine of "last *717
clear chance," but, as pointed out by appellant and admitted by respondent, that doctrine has no application here because, as clearly stated in the case of Waterman v. Visalia E. R. R. Co.,
The judgment is reversed.
Nourse, J., and Sturtevant, 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 May 4, 1922.
All the Justices concurred.
*718Waste, J., was absent and Richards, J., pro tem., was acting.
