Plаintiff: sued for damages for the death of her adult son, Lester G. Wessling. The cause was tried with a jury, which returned a verdict for the defendant. From the judgment on the verdict plaintiff has appealed upon .typewritten transcripts.
On July 1, 192'6, at about 5 :45 P. M. Albert and Lester Wessling left the latter’s home in the city of Richmond in an automobile owned by Lester Wessling and his mother and driven by Lester. The brothers were on their way to the postoffice in the business section of the city and their route took them over Barrett Avenue to the crossing of defendant’s tracks. As they approached the crossing from the east they stopped to let train number 48, which was proceeding northerly, pass. They then drove slowly over the crossing and when they reached the westerly track they were struck by train number 7, which was traveling to the south into the Richmond station. The driver of the cаr, Lester Wessling, had passed over this crossing frequently and was thoroughly familiar with the surroundings. An automatic “wigwag” was maintained on the northeast corner of the crossing. A flagman was housed at the southwest corner. This flagman ordinarily stood near the westerly track when a train was passing from the south and near the easterly track when a train was passing from the north. He signaled the danger of an approaching train by holding upright a stop disc by day and a lantern by night. The “wigwag” was controlled by an electric switch. The current was cut off by the operation of the trаin at a point a few feet beyond the crossing, but this “wigwag” continued to oscillate from ten to twenty seconds after the electric current was cut off. As the Wesslings started to cross the tracks this “wigwag” was moving, but, whether the movement was caused by the passing train or from a new contact made by the approaching train No. 7, was, of course, impossible to determine.
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Plaintiff rested her ease upon the alleged negligence of defendant in the operation of train No. 7 at an excessive speed and the failure of the flagman to be in his accustomed place and to give the usual or any warning of the approach of this train. Defendant denied both alleged acts of negligence and set up contributory negligence on the part of the deceased. The cause was tried jointly with cause No. 7870,
post,
p. 455 [
Manifestly if the evidence of the plaintiffs was believed they made a case for the relaxation of the “stop, look and listen” rule to the extent that the failure to stop, look and listen is not in such eases negligence as matter of law. Under such circumstances “The extent to which a traveler may rely upon the assurance of safety arising from the absence of a flagman from his post of duty on the presumption that it is safe for him to cross a railroad track which he is familiar with is generally held to be a question of fact for the jury.”
(Gregg
v.
Western Pac. R. R. Co.,
With these qualifications of the “stop, look аnd listen rule” in mind we may approach the consideration of the instructions of which the appellant complains. At the request of respondent the jury was instructed: “If you believe from the evidence that there was a place of safety at which the automobile could have stopped, and from which the driver of the automobile could have seen Train No. 7 approaching from the north and traveling southerly, and that solely because of the neglect of the driver the said automobile was not stopped in such place, then I instruct you that your verdict must be for the defendant.” “If you believe from the evidence that the automobile was driven to and upon the crossing while the view of the occupants thereof was obscured by Train No. 48 traveling northerly so that they could not see the approаch of Train No. 7 traveling southerly on the further tracks, your verdict must be for the defendant.”
The appellant criticises these instructions on the ground that they are “formula” instructions which fail to take into consideration her claim that the flagman was not performing his duty. The respondеnt defends them upon the ground that they present its theory of the case that the flagman fully performed his duty. The performance or nonperformance on the part of the flagman was a question of fact for the jury. To instruct the jury that they
must
find for the defendant if they found that the drivеr had failed to stop at a place of safety where he could have ascertained whether another train was approaching from the north was tantamount to directing a verdict for the defendant notwithstanding the question of the acts of the flagman. It being conceded that the driver had stopped
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before approaching the first tracks of the crossing in order to let train No. 48 pass, this instruction further required him to ascertain as a matter of
certainty
that the crossing could be made in safety irrespective of the presence or non-presence of the flagman. There was nothing in this case which required this driver to exercise a greater
quantum
of care than that required of the reasonably prudent person under similar circumstances. But the jury was not permitted to determine that such reasonable care was exercised, but was told that the driver was negligent if he failed to stop at a time and at a place where and when he could be
sure
that the crossing could be made in safety. The rule is settled that when an instruction directs a verdict for one of the parties, if the jury finds certain facts to be true, it must embrace all things necessary to show the legal liability of the other and to warrant the direction that such party is entitled to a verdict.
(Pierce
v.
United Gas & Elec. Co.,
The suggestion is made, though not seriously argued, that the error of these instructions was cured by the instructions given at the request of the appellant to the effect that where the railroad company maintains a flagman or other signals of warning the public has a right to assume that such safeguards will be reasonably maintained and that if the flagman is absent from his post оf duty or fails to give the usual warning of danger this is an assurance of safety upon which a driver may rely provided that he uses
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such precaution as a prudent person would use under like circumstances. In the same connection it is suggested that the instructions objected to were cured by the one given at the request of the appellant to the effect that “There is no positive rule of law requiring the said decedent or the said plaintiff to again stop, look or listen at any particular place upon the said crossing.” These instructions, however, do nothing more than create a conflict and it is impossible to say which instruction the jury followed in arriving at its verdict. This being so, they cannot cure the error complained of.
(Keena
v.
United Railroads,
The appellant further complains of the refusal of the trial court to give her prоposed instruction reading as follows: “A person crossing a railroad track guarded by safety devices, or flagman, is not- required to exercise the same
quantum,
of care which would be required of him if he were crossing an unguarded track, but in the case of a guarded crossing the trаveler is required to exercise only ordinary care for his own safety. The railroad company will not be permitted to encourage the public to relax its vigilance as to the danger’s that lurk in railroad crossings by assurances that the danger has been removed or minimizеd by the adoption of safety devices or other measures, such as a flagman, and at the same time hold a person to the same
quantum
of care as if no safety measures had been provided.” The proposed instruction correctly states the law
(Gregg
v.
Western Pac. R. R. Co.,
Complaint is also made of the reading in evidence of the testimony of' the witness Edward Aurswald, who was the flagman on duty at the time of the accident and who testified at the first trial of these actions. Judgment here on appeal comes from the fourth trial. In the second trial the testimony of this witness was read under stipulation of the parties. Following the second trial counsel for the plaintiff secured information which they believed would
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impeach the testimony of this witness. He vas not produced at the third trial and his testimony was not read. Before the fourth trial appellant’s counsel offered to permit the reading of the testimony if certain facts which might be shown on cross-examination would be stipulated to. This offer was not accepted and some suggestion was made that the deposition of the witness be taken which it is agreed might'have been done. During the course of the trial respondent offered to read the testimony givеn on the first trial and presented to the court a letter from the witness to the effect that he was ill and unable to appear and testify. Over the objection of the appellant this letter was received in evidence and the testimony read. On this appeal resрondent defends its action on its interpretation of section 1870 of the Code of Civil Procedure, which permits the reading of the testimony of a witness in a former trial if “deceased, or out of the jurisdiction, or
unable to testify”.
The appellant insists that the meaning of this expression is not limited to the inability of the witness to testify in the courtroom, but if, as it is admitted here, the deposition of the witness' might have been taken then that course should be followed and his former testimony should not be' read. No authorities are cited directly to the point though
Butcher
v.
Vaca Valley R. R. Co.,
The judgment is reversed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 1, 1931, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 29, 1931.