This is an appeal by defendants, The Atchison, Topeka and Santa Fe Railway Company and William M. Floyd, an employee of said company, from an order granting plaintiff a new trial in an action for personal injuries.
On January 11, 1952, shortly after 9:30 a.m. plaintiff and respondent, Dewey Deshotel, was seriously injured as a result of a collision between the Yellow Cab in which he was a passenger and a Santa Fe train at the intersection of Parker and Acton Streets in the city of Berkeley. Respondent sued the Yellow Cab Company, its driver Hughes, and the Santa Fe Railway alleging negligence on the part of each corporate defendant in separate counts, and concurrent negligence of both in a third count. The jury returned a verdict for $300,000 against the Yellow Cab Company, and a verdict in favor of the defendant Santa Fe.
Motions for new trial were filed by both plaintiff and Yellow Cab Company. The court granted a new trial "upon all the issues" as to both motions. As to plaintiff's motion against defendant Santa Fe, the court granted the motion upon the ground of the insufficiency of the evidence to justify the verdict and errors of law occurring at the trial. The Yellow Cab Company's motion was granted upon all issues "upon the ground of excessive damages appearing to be given under the influence of passion and prejudice and errors in law occurring at the trial."
Appellants contend that the trial court abused its discretion
Appellant has placed great emphasis on the fact that the speed of the train was not a proximate cause of the accident, because traveling at the speed of 20 miles per hour prescribed for this area by the company rules, the train could not have been stopped in time to avoid hitting the cab. Even if the testimony that the train was traveling at approximately 20 miles per hour is taken as true, and that of another witness who estimated the train's speed at 35 miles per hour is discounted, still it is a question of fact whether 20 miles per hour was a reasonable speed under these circumstances. Whether or not the Santa Fe Railway was negligent is not to be judged by the speed of the train alone. If the warning devices are insufficient to alert drivers to the fact that they are approaching a crossing, such negligence may be considered one of the proximate causes of an accident. The photograph shows that the area where the accident occurred is a residential district. All the testimony is to the effect that it was a rather dark day, that it was or had been raining. There was some testimony that visibility was bad, other testimony that it was fair. Several witnesses testified to the fact that another car was traveling a short distance ahead of the Yellow Cab, estimated variously from a car length to 25 feet, that it proceeded directly across in front of the train and narrowly escaped being hit.
In view of the condition of the crossing, the area in which it was situated, and weather conditions, a speed of 20 miles per
It would seem to have been quite material whether or not warning signals were sounded at a crossing such as this. Appellant admits that the testimony of the witnesses differs on the question of whether the bell was ringing and the whistle blowing. Public Utilities Code, section 7678, declares that it is a misdemeanor for a person in charge of a locomotive-engine to omit to cause a bell to ring or steam whistle, air siren or air whistle to sound at least 80 rods from a crossing and up to it. Public Utilities Code, section 7604, provides that a bell of at least 20 pounds weight shall be placed on each locomotive engine, "and shall be rung at a distance of at least 80 rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has crossed the street, road, or highway; or a steam whistle, air siren, or an air whistle shall be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the street, road, or highway." A penalty is provided for violation of this section, and it is further provided that the corporation is liable for all damages sustained by any person "and caused by its locomotives, train, or cars, when the provisions of this section are not complied with." Testimony either negative or positive that there was no bell ringing or whistle sounding as the train passed over a public crossing has been held sufficient to sustain a finding of negligence. (Jones v. Southern Pac. Co., 74 Cal.App. 10 [239 P. 429]; Switzler v. Atchison, T. & S.F. Ry. Co., 104 Cal.App. 138 [285 P. 918]; Lahey v. Southern Pac. Co., 16 Cal.App.2d 652 [61 P.2d 461]; Hoffman v. Southern Pac. Co., 215 Cal. 454, 457 [11 P.2d 387].) It is unnecessary to review all the testimony of the witnesses on this point in view of appellant's admission that it differs. His argument discounting the testimony of certain witnesses because they were not particularly listening for the signals or because they were so used to them that they paid no attention, is merely an argument as to the weight of the evidence. It is noteworthy that one witness who was driving not far from the scene of the accident, did not recall hearing any signals but did hear the noise of the train's brakes being applied.
Appellants' contention that the evidence shows how little the train crew could have done and how much the cab driver could have done to avoid the accident might be good if an
What has been said above requires an affirmance of the order, and discussion of appellant's second contention is unnecessary for a disposition of the case.
"It is prima facie unlawful, under Section 511 of the Vehicle Code of California, for the driver of a vehicle to exceed the speed of 15 miles an hour when traversing a grade
The giving of this portion of section 511 of the Vehicle Code has been held to be erroneous in numerous cases because it is applicable only to criminal actions, and it improperly shifts the burden of proof in a civil action on the issue of speed from the plaintiff to the defendant. And when it is given with section 513 of the Vehicle Code which states the rule for civil actions, it creates a conflict. (Westberg v. Willde, 14 Cal.2d 360 [94 P.2d 590]; Akers v. Cowan, 26 Cal.App.2d 694 [80 P.2d 143]; Anderson v. Mothershead, 19 Cal.App.2d 97 [64 P.2d 995].) In the present case, section 513, stating the correct rule was not even given. Appellant contends that the instruction could not have been prejudicial, however, and attempts to distinguish the Westberg and Akers cases on the ground that in those cases both the incorrect instruction on burden of proof similar to that given here, and the correct instruction on section 513 of the Vehicle Code were given. Hence, it was necessary to reverse because of the conflict, the court being unable to tell whether the correct or incorrect instruction had been followed. But it would seem all the more likely that a jury would fall into error if they had only the incorrect instruction as in the present case. There was not even a chance, as in the above two cases, that they might have been guided by the correct rule. Anderson v. Motherheads, supra, was a case similar to this, where the court did not instruct on the correct rule of section 513. The court there plainly stated that the giving of the instruction was prejudicially erroneous. (Anderson v. Mothershead, supra.) Appellant contends that it is speculative whether the court there would have reversed on that ground alone, since other errors were committed, as well. However, the case is a direct holding that it is prejudicial error to give an instruction on section 511, Vehicle Code, similar to that given herein. (See also Burch v. Valley Motor Lines, Inc., 78 Cal.App.2d 834, 848 [179 P.2d 47]; Anderson v. Newkirch,
Appellant cites Shuey v. Asbury, 5 Cal.2d 712 [55 P.2d 1160], wherein on appeal from the judgment it was held that an erroneous instruction to the effect that defendant was guilty of negligence as a matter of law if her speed exceeded 20 miles per hour was not prejudicial, since under the facts of the case, it was apparent that no other verdict could have been rendered. Also cited is Wood v. Moore, 64 Cal.App.2d 144, 149 [148 P.2d 91] and wherein it was held that the instructions were not prejudicial to the complaining party since there was no issue as to her speed and the evidence of her negligent operation of her car was overwhelming. Again in Noble v. Miles, 129 Cal.App. 724, 727-728 [19 P.2d 265], such erroneous instructions were held not prejudicial where the element of speed was not considered a controlling element in the case. All of these cases were appeals from judgments. None were cases in which the court was considering an appeal from an order granting a new trial wherein all presumptions are in favor of the order. Here the burden is on appellant to establish affirmatively that the order is erroneous. (Taylor v. Rodriquez, 10 Cal.App.2d 608 [52 P.2d 494].)
Order granting respondent a new trial is hereby affirmed.
Nourse, P.J., and Dooling, J., concurred.