T&T Legal

Extracted and summarized from 66 Cal.App.2d 736

by J. A. McCulloch


Excerpt from 66 Cal.App.2d 736


RE: Civil Action No. 3282 in the Fourth District Court

Nov. 9, 1944.

Mr. Fred A. Wilson appeared for Edith J. Grover.
Messrs. Kenneth J. Murphy, Harry Parsons and Henry E. Kappler appeared for the Sharp & Fellows Contracting Company.

Justice J. Marks delivered the opinion of the Court with with Justices P. J. Barnard and J. Griffin concurring.

In a civil lawsuit concerning the death of James M. Roe, the minor son of Edith J. Grover, by a collision between a flat car and an automobile in which James was riding the contractors had been sued for damages.

While the jury returned a verdict in against Sharp and Fellows, the trial court judge granted a motion for new trial on "the ground that the evidence is insufficient to justify the verdict." This current case hearing concerns Mrs. Grover's appeal from this order. The setting out of the case is as follows:

The accident took place about 8 PM on December 21, 1942, at the intersection of Highway 91 (the old designation for I-15 - Ed.) with the tracks of the Tonopah and Tidewater Railroad Company near Baker. The roadway was dry and the night was clear and cold with the moon shining. The automobile was being driven by John Wolbert.

Highway 91 runs in a generally straight east-west direction on both sides of the railroad tracks. At that time the highway was crossed by the railroad at an angle variously estimated at between 30 and 45 degrees.

At the time of the accident the Tonopah & Tidewater Railroad had not been in service as a common carrier for several years. It had been "abandoned in place" leaving all rails and equipment. The government had finally requisitioned its trackage under the war powers acts and the Sharp and Fellows Contracting Company had been given the contract for removing the rails. It had removed the rails from the northern end of the line, starting at Beatty, Nevada, to about eight miles north of Baker. At the time of the accident it was working southwards using the remaining tracks to their junction with the Union Pacific Railroad Company some sixteen miles south from Baker at Crucero. Sharp and Fellows had rented an old engine, tender, several flat cars and probably a derrick car from the Tonopah and Tidewater Railroad Company for use in its removal of the rails and the subsequent transportation to the Union Pacific line. There were two switches (siding?), one about 100 feet north of the highway crossing, and the second about 100 feet further north and away from the highway. Both were on the east side of the main line tracks.

On the evening of the accident the train had been made up for its trip to Crucero. It consisted of an engine, a tender, at least two empty flat cars, two loaded flat cars and the derrick car. The engine, at the southern end of the train, was positioned in reverse so that the rays of its headlight were projected northeasterly and shone over the rest of the train. There was no Wye at Baker to permit the turning of the engine. The cars of the train should have been easily visible to a motorist approaching from the east.

At least one employee of the contractor had been stationed in the highway to flag down motor traffic with an electric lantern during the switching operations. Just before the train started across the highway the trainman left that position and went near the first switch so he could transmit signals.

Quoting from the case:

"East from the crossing there were various signs on and along the highway warning motorists of their approach to it. About 20 feet east of the crossing two broad white lines were painted across the highway and the usual cross-arm signal was on the north edge of the highway. Sixty or more feet to the east there was a reflector railroad crossing sign on the north edge of the road. About 300 feet east of the crossing two broad white lines were painted across the north half of the pavement with two large white "X's" painted between the lines.

The employee of Sharp and Fellows Contracting Company who had been in the highway to warn traffic testified that when the train was made up he left that post and went to a point near the first switch so he could transmit signals; that when he was about 40 feet north of the highway he saw the automobile involved in the collision when it was several hundred feet east of the crossing; that its headlights were illuminated; that at about that time the engine started to move south across the highway at a speed of three or four miles per hour; that before it started the engineer gave three blasts on the whistle and the usual crossing signal with the whistle; that the headlight on the engine was burning and was shining in a northeasterly direction over the train; that during the entire time between the start of the train and the collision the engine bell was being rung; that when the engine had just cleared the highway one of the empty flat cars was across it.

He further testified that he observed the automobile approach the crossing; that its speed was between 30 and 40 miles an hour which was not reduced; that when the automobile was about 100 feet east of the crossing he realized the danger of a collision as its speed had not been reduced; that he was then about 40 feet north of the highway; that he waved his lantern, called out a warning and started running towards the highway waving his lantern; that the automobile continued on its course without reducing its speed and crashed into the middle of one of the empty flat cars. There were no tire marks of any kind observable on the pavement.

The automobile which ran into the flat car was owned by James M. Roe, the deceased son of plaintiff, and was being driven by John Wolbert. Plaintiff testified that the deceased, her son, had been working in Salt Lake City prior to the accident. There is no evidence as to the purpose of the journey being made by the two young men other than a statement by counsel during the trial that, "Two boys, one named James M. Roe and the other by the name of Wolbert were coming home from school in Utah to spend the Christmas holidays with their parents who live in Los Angeles County." We regard this statement sufficient to establish the purpose of the trip and the relationship between the youths at the time of the accident.

The evidence we have outlined is sufficient to support the conclusion of the trial judge, if drawn, that Wolbert was not keeping a sufficiently vigilant watch for obstructions on the highway in front of him and did not observe, or at least did not pay sufficient attention to the various warnings of danger which we have mentioned. This is sufficient to support a finding of contributory negligence on his part under the authorities already cited and if that negligence can be imputed to Roe, the order granting a new trial must be affirmed. Because some of the evidence we have outlined is sharply contradicted does not furnish sufficient ground for reversing the order.

We do not find it necessary to consider the question of any negligence on the part of defendants because the facts bearing on contributory negligence are sufficient to support the order, regardless of the negligence, if any, of defendants. While Wolbert might not have been shown to have been guilty of contributory negligence as a matter of law, the finding of contributory negligence as a matter of fact, if made, would have had evidentiary support."

This hearing affirmed the original Judge's decision to set aside the jury's verdict and not award damages to Edith J. Grover.


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