WOOD (Fred B.), J.
The widow and two minor children of Kresten Jensen recovered judgment for $25,000 from Southern Pacific Company for the death of Kresten, which occurred while he was driving a truck easterly on Broadway Street, Burlingame, across the Southern Pacific tracks. He was hit by a southbound train. It was 5 p.m. on May 8, 1946.
If the company's liability, predicated upon negligent operation of the train, rested solely upon respondeat superior and not upon its own independent tort, exoneration of the trainmen would have exonerated the company. (Freeman v. Churchill, 30 Cal.2d 453, 461 [183 P.2d 4], and authorities there cited.)
We find nothing inconsistent with these views in Will v. Southern Pac. Co., 18 Cal.2d 468 [116 P.2d 44], or other subsequent decisions in this state.
In our case, there was evidence that the company, not the trainmen, directed and controlled the speed of trains at the crossing. The engineer testified that he did not have the determination of speed; that he did not determine whether he should go 60 miles an hour past crossings; the speed boards regulated the speed of the train that he maintained; the type of crossing protection did not make any difference as to the speed he maintained; that "our speed is all regulated by speed boards." The time schedule also governed. It was prescribed by the company, not by the trainmen. According to the conductor's best recollection the speed of the train at the time of the accident was 60 miles an hour.
The defendant company maintained at this crossing a warning device known as the Griswold, installed pursuant to an order of authorization of the Public Utilities Commission in 1934 upon application of the company for permission to make such an installation. This order was made by the commission against the background of its General Order No. 75-A which in 1939 was superseded by General Order No. 75-B, prescribing regulations for the protection of grade crossings. Section 8 of order 75-B declares that no railroad shall "remove" any form of crossing protection or "reduce" the hours during which any such protection is maintained or "substitute" any form of crossing protection for a form already maintained unless the consent for such "removal, reduction or substitution" shall have been secured from the commission, save for certain exceptions not here relevant.
It appears that the commission has given no consent to any such "removal, reduction or substitution" at this crossing at the sole expense of the defendant company. Prior to the
The company contends that we have here the exercise by the Public Utilities Commission of exclusive jurisdiction for the protection of the traveling public at street and railway grade crossings "which establish the minimum and the maximum of care to be exercised in the matter of warning highway travelers of trains in the course of usual operations," at the very crossing at which the accident here involved occurred. The company in this behalf invokes the plenary power which the Constitution gives the Legislature to confer authority upon the commission and the exercise of that plenary power as expressed in such statutes as sections 768, 1202, 1706, 1709, 1759, 2109 and 2110 of the Public Utilities Code and interpreted in such decisions as Los Angeles Ry. Corp. v. Los Angeles, 16 Cal.2d 779, 783-788 [108 P.2d 430]; Northwestern Pac. R.R. Co. v. Superior Court, 34 Cal.2d 454 [211 P.2d 571]; People v. Western Air Lines, 42 Cal.2d 621, 630, 633-634 [268 P.2d 723]; Holder v. Key System, 88 Cal.App.2d 925, 932 [200 P.2d 98].
The fallacy of this argument inheres in the failure to distinguish between the functions respectively exercised by the commission and the court in the situation presented by the facts of this case. The overlap of function is seeming, not real. The commission acts in a legislative capacity; the court, in a judicial capacity. The commission lays down requirements governing future conduct by the company for the safety of the public at grade crossings. The court determines whether or not the past conduct of the company was in violation of duties owed by it to particular members of the public. The state, in prescribing such safety regulations (whether done by legislative enactment expressed in a statute or by action of the commission expressed in an order), has never gone so far as to say to a utility company that compliance therewith constitutes a complete discharge of its duties toward the public. The state does not undertake to foresee and declare in advance what, under all circumstances, constitutes ordinary care. Regulations of this nature lay down minimum, not maximum, requirements. (Hinkle v. Southern Pac. Co.,
Indeed, the regulations here involved show upon their face that they are minimum, not minimum and maximum. Section 8 of General Order 75-B proscribes merely the "removal, reduction or substitution" of crossing protection devices without commission consent. It does not prohibit "additions" thereto without such consent. And section 7 of the General Order affirmatively sanctions such "additional protection" without prior consent. It requires merely that additional installations be "reported" to the commission.
Defendant's complaint under this head seems to be that the question whether or not a person of ordinary prudence would have furnished one or more additional warning devices, such as a flagman or gates, presented technical engineering questions improper for submission to the jury; improper in the absence of proof of a business custom or practice of furnishing such devices under similar circumstances. That may be the law in some jurisdictions but not in California. As early as 1892 our Supreme Court held it competent for a jury to determine whether or not it was negligence for a railway company to use a "Miller hook coupling" on a caboose in connection with a "Potter drawhead coupling" on a freight car. (Martin v. California Cent. Ry. Co., 94 Cal. 326 [29 P. 645].) In Green v. Southern Pac. Co. (1921), 53 Cal.App. 194 [199 P. 1059] (hearing by Supreme Court denied), the court held that the "jury, under the evidence, was authorized to determine that failure to have a flagman there [a grade crossing] was negligence and a proximate cause of the accident." (P. 203. See also Marchetti v. Southern Pac. Co., 204 Cal. 679, 684 [269 P. 529]; Peri v. Los Angeles Junction Ry., supra, 22 Cal.2d 111, 120-126.)
Defendant also complains that on this subject the jury "was not instructed to consider whether ordinary care was used in the matter of warnings at the crossing; instead it was instructed upon the wholly immaterial matter as to whether ordinary care was used to furnish and maintain devices for the purpose of protecting travelers in general and warning them ..." This seems to us a distinction without a difference.
Defendant speaks also of the impossibility of the creation, by custom or usage, of a duty to maintain gates at Broadway when a duty to maintain Griswold signals thereat is imposed by order of the Public Utilities Commission. That reflects a misconception of the scope of that order, discussed earlier in this opinion.
The company says that it was chargeable with such knowledge; hence, this evidence was unnecessary, and therefore irrelevant, citing Martindale v. Atchison, T. & S.F. Ry. Co., 89 Cal.App.2d 400, 412 [201 P.2d 48]. In that case the defendant had admitted knowledge of previous accidents mentioned in the proffered letters. In the instant case, there was no similar admission on the part of the defendant. Indeed, it denied the existence of any unusual hazard at the Broadway crossing. Moreover, while the defendant was probably chargeable with knowledge of the physical character and condition of its property, it was not necessarily chargeable, to the same degree at least, with knowledge of traffic conditions, including the volume and congestion of traffic at this crossing, which contributed materially to the hazardous condition in question. Thus, it has been held that when the existence of danger is due to causes other than the activity of the defendant, it is necessary to prove that he had actual or constructive notice of that danger. (Hatfield v. Levy Brothers, 18 Cal.2d 798, 806 [117 P.2d 841].)
Under the circumstances, we see no sound reason why
The court advised the jury: "If you find that what Kresten Jensen did in this case was what an ordinarily prudent person would have done under like circumstances, you will not find him guilty of contributory negligence even though you find that he did not stop, look or listen or did not alight from his truck." (No. 37.)
The court also read to the jury the text of subdivision (a) of section 575 of the Vehicle Code and instructed them in the terms of instruction No. 149 of B.A.J.I. (3d rev. ed.). The court thereby instructed that failure to stop when a clearly visible signal device gives warning of the immediate approach of train raises a presumption of negligence, a presumption which might be overcome by evidence showing that the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence.
Defendant contends that the first of these instructions (No. 37) is erroneous and that the two are contradictory, making it impossible to know which one the jury used and applied in finding upon the issue of contributory negligence.
Instruction No. 37, taken alone and literally, is erroneous and presents a seeming contradiction with No. 149. However, when we read both instructions in the light of other instructions
In connection with the text of section 575, subdivision (a), of the Vehicle Code, the court gave instruction No. 149 of B.A.J.I., as we have noted. The legal effect of a presumption was also appropriately explained to the jury, in the same terms as was done in Combs v. Los Angeles Ry. Corp., 29 Cal.2d 606, 609 [177 P.2d 293], and in Ornales v. Wigger, 35 Cal.2d 474, 478-479 [218 P.2d 531].
Defendant assigns error because B.A.J.I. No. 149 lacks a description of the kind of facts that will excuse the violation of a statutory standard, claiming that defendant made a proper request for such a description.
B.A.J.I. No. 149 is "a complete and correct statement of the law" and "when combined with the instruction explaining the legal effect of a presumption, clearly states the applicable principles of law" (Combs v. Los Angeles Ry. Corp., supra, 29 Cal.2d 606, 610) but "the fact which will excuse the violation of a statute has been defined by the court as one resulting `from causes or things beyond the control of the person charged with the violation'" (Satterlee v. Orange Glen Sch. Dist., 29 Cal.2d 581, 589 [177 P.2d 279]).
Defendant claims it met these requirements when it requested the following instruction, which the court refused:
"The Court instructs you that a presumption of negligence or contributory negligence arises from the violation of an express statute, such as the provisions of the California Vehicle Code, which I have read to you. In the absence of sufficient evidence in excuse or justification to balance the resulting presumption of negligence or contributory negligence, the presumption of negligence or contributory negligence is conclusive. The burden of producing evidence in excuse or justification rests upon the violator, or upon those claiming damages for his death.
"Moreover, it is not a sufficient excuse or justification for the violation of an express statute that it resulted by reason of some other negligent act upon the part of the violator, such as his failure, upon approaching a railroad grade crossing, to observe other precautions which a reasonably prudent motorist woud have observed under the conditions which then and there existed.
"A showing of excuse or justification is not sufficient unless it shows that the violation resulted `from causes or things beyond the control of the person charged with the violation.'"
Here we have defendant requesting and obtaining an instruction on the effect of a statutory violation when committed "without adequate excuse or justification" and no mention made of the kind of circumstances which might "excuse or justify."
Under these circumstances we do not consider that defendant appropriately and adequately presented to the trial judge its desire for a suitable qualifying instruction concerning the circumstances which will excuse the violation of a statute.
In his argument to the jury defense counsel stressed the time, almost a year, that elapsed between the date of the accident and the filing of the complaint and (according to plaintiffs' brief and not denied by defendant) challenged plaintiffs to explain the delay.
In response, plaintiffs' counsel said to the jury: "Now, he (Mr. Center) asked why did it take so long to bring suit. He asked me something that might cause me to go outside of the record in answering that. Let's take a hypothetical situation now. Of course, we had no evidence supporting it in this particular case, but let's take a hypothetical situation, let's take an injury or a death, any of you lose a loved one as a result of an accident, you consulted a lawyer, you present
Thereupon, defendant's counsel objected, cited this statement as prejudicial misconduct and asked for a mistrial and that the jury be instructed to pay no attention to these remarks of counsel. The court ruled: "Well, I have an instruction here that I will give to the Jury, that any statement of counsel is not evidence and you are to decide the case only from the evidence produced by the witnesses, and also this last statement that was objected to of Mr. Lull's will be stricken from the record, and the Jury is instructed to pay no attention to it."
In view of this ruling and admonition to the jury it is improbable that the quoted statement of plaintiffs' counsel resulted in a different verdict than would have been given had no such statement been made. "It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have." (Tingley v. Times Mirror Co., 151 Cal. 1, 23 [89 P. 1097]. See also Albaugh v. Mt. Shasta Power Corp., 9 Cal.2d 751, 778 [73 P.2d 217], and Drotleff v. Renshaw, 34 Cal.2d 176, 180 [208 P.2d 969].)
The judgment is affirmed.
Peters, P.J., and Bray, J., concurred.
A petition for a rehearing was denied December 22, 1954, and appellant's petition for a hearing by the Supreme Court was denied January 19, 1955.