Whitney v. Northwestern Pacific Railroad

This is an appeal from an order granting a new trial. The action is one for damages and is brought by the administrator of the estate of O. W. Sinclair, deceased, for the death of Sinclair in an accident in which an automobile which was being driven by the deceased was struck by a train of respondent at a public road crossing in Humboldt County. Judgment was rendered on a verdict of the jury in favor of the plaintiff for twenty-five thousand dollars. The defendant regularly made a motion for a new trial on practically all the grounds authorized by statute, including that of insufficiency of the evidence to justify the verdict. The trial court disposed of this motion by making a general order granting the same. The appellant urges that this order should be considered as made upon the sole ground that the evidence showed deceased guilty of contributory negligence as a matter of law which would prevent a recovery; and in support of this claim, it is alleged in appellant's brief that at the time the order was made, a memorandum was given to the clerk stating such ground for the order. No such memorandum is a part of the record, and therefore cannot be considered by this court. It has, however, been repeatedly held that any limitation of such a general order, to be effectual, must be specified in the order. The order of the court entered upon its minutes is the only evidence of the action of the court *Page 141 in granting the new trial, and such order is to be measured by its terms, and not by the reasons which the court may give for it. (Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, [75 P. 332]; Newman v. Overland Pacific Ry. Co., 132 Cal. 73, [64 P. 110]; Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, [7 Ann. Cas. 636, 83 P. 439].) Appellant also sets out in his brief a personal letter from the trial judge to appellant's attorney, written subsequent to the order, stating that only one ground was considered in making the ruling complained of, namely, that the deceased was guilty of contributory negligence. This is attempted to be used as a limitation of the general order. This letter constitutes no part of the record on appeal. (Hanna v. DeGarmo, 140 Cal. 172, [73 P. 830].) An exactly similar question has been decided in the case of Weisser v. Southern Pacific Ry. Co.,supra. If any of the grounds specified in the notice of motion for a new trial are sufficient to sustain the order, we think this court is compelled to assume, in favor of the order appealed from, that the motion was granted upon that ground. (Ben LomondWine Co. v. Sladky, supra.) Insufficiency of the evidence to justify the verdict was one of the grounds specified in such notice of motion. There is a voluminous record in the case, and an examination of it discloses much conflict in the testimony. Under these circumstances, the order granting a new trial was wholly within the discretion of the trial court. The record affords no basis for a claim that there was any abuse of discretion, and the ruling of the trial court cannot be disturbed. (Newman v.Overland Pacific Ry. Co., supra.) While it is unnecessary, for the purposes of this appeal, to consider any of the other points made in support of the order, the question as to whether deceased was guilty of contributory negligence as a matter of law, thereby barring a recovery against defendant, has been carefully briefed by counsel for both appellant and respondent, and its determination may be necessary for the purposes of a new trial. From the evidence it appears that the deceased was driving his automobile from his home in Eureka to Dyerville. The top of the machine was up. At about 5 o'clock in the afternoon he crossed Eel River on a pontoon bridge, and proceeded *Page 142 thence along a winding road up a steep grade, traveling slowly, to the top of the river bank, along which was the railroad track, across which the highway ran. While crossing the railroad track, the automobile was struck by defendant's freight train and deceased sustained injuries from which he died. It is conceded that the testimony shows that the view of the railroad track was obstructed by trees and weeds, and that a steel bridge was being erected across the river, and the noises incident to its construction would make it difficult for a traveler to hear an approaching train. The testimony is to the effect that the deceased did not stop his automobile from the time he started up the hill until he was struck by the train. The testimony is conflicting as to when the train started to blow a warning whistle. The defendant, however, contends that it was the duty of the deceased to stop his automobile and look and listen for an approaching train before crossing a steam railroad track where the view of the track was obstructed, and that, failing to do so, he was guilty of contributory negligence as a matter of law. The plaintiff contends that the peculiar facts of this case place it outside of this rule for the reason that there was no place of safety in which the defendant could stop after he had reached a point where, by stopping and looking, he might have seen the train. There is some testimony to the effect that until the deceased had passed the last obstruction he could not have seen the train, and that when the last obstruction was passed, deceased was so close to the track that had he stopped his car he would have been struck by the overhang of the engine. Even according to defendant's contention, deceased had but one and nine-tenths feet clearance after passing the last obstruction, within which to stop. Clearly, then, deceased could not have stopped his automobile in a place of safety where he could have seen the train, and at least some of the evidence is to the effect that he could not have heard the train if he had stopped, on account of the noise of the work of constructing the bridge. Under the circumstances, Was it the duty of deceased to have stopped his machine before passing the obstructions, and to have proceeded ahead on foot, if necessary, in order to ascertain if there was any danger before crossing the track? We think the case of Murray v. Southern Pacific Ry. Co.,177 Cal. 1, [169 P. 675], relied upon by defendant, does not *Page 143 lay down the rule of law as broadly as contended for by defendant. In that case the supreme court takes particular care to point out that it is not the rule of law in this state that a driver of a motor vehicle, approaching a steam railroad crossing, is negligent if, his vision being obstructed, he does not stop his vehicle, leave it, and go forward for the purpose of observation. The supreme court, in adopting the decision of the court of appeal, points out that the discussion therein is addressed to the motion for a nonsuit under the particular facts of that case. As said in that case, it is only when but one conclusion can reasonably be reached from the evidence on the question of contributory negligence, that the question is one of law for the court; and that even where there is no conflict in the evidence, contributory negligence is a mixed question of law and fact for the jury, if different conclusions upon the matter can rationally be drawn from the evidence. (Fernandes v. Sacramento etc. R. R. Co., 52 Cal. 45; Chidester v. Consolidated Ditch Co., 59 Cal. 197; McKeever v. Market St.R. R. Co., 59 Cal. 294; House v. Meyer,100 Cal. 592, [35 P. 308].) In the case at bar it would seem that the question of negligence was one for the jury. To reach a conclusion on this question involves several deductive processes. First, it seems, the jury would have to decide from the evidence whether or not deceased knew of the location of the crossing, and that he was approaching it, for until they had decided that matter, they could not decide whether or not, under all the circumstances, deceased was negligent in not stopping to look and listen. As said by the court in the case of Murray v. Southern Pacific Ry.Co., supra, there is no absolute duty on a driver to stop before crossing a railroad track. Negligence is measured by the conduct of a reasonably prudent man, and cannot be determined until all the facts surrounding the incident are determined. All of the decisions cited by respondent, which set out the duty of plaintiff to stop and look and listen upon approaching a crossing, assume that the location of the crossing was known to the plaintiff, and that by stopping, looking, and listening before reaching the track, the approach of the train could be discovered. These are all disputed facts in the case at bar, upon which the evidence is conflicting. *Page 144 We think the question of the contributory negligence of the deceased in this case is a question for the jury, under proper instructions from the court. The order granting a new trial is affirmed. Beasly, J., pro tem., and Sturtevant, J., pro tem., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on January 4, 1919, and the following supplemental opinion then rendered thereon: