Gibson v. Southern Pacific Co. , 137 Cal. App. 2d 337 ( 1955 )

PETERS, P. J.

I dissent from that portion of the majority opinion that holds that the trial court properly entered a judgment notwithstanding the verdict on the theory that plaintiff was guilty of contributory negligence as a matter of law. That issue, in my opinion, was clearly one of fact and not of law. I agree with all other portions of the majority opinion.

The basic fallacy in the majority opinion is that it discusses the facts and law relating to the issue of contributory negligence of the plaintiff as if they were unrelated to the facts and law relating to the duty owed by defendant to plaintiff. The two are, of course, integral parts of the same problem.

The jury here found that defendant was negligent. While the majority do not discuss at any length the nature of the duty violated by defendant, they do assume the sufficiency of the evidence to sustain the finding, and defendant does not challenge this assumption. The jury also found that plaintiff was not contributively negligent. The majority hold that this finding is unsupported, and that the jury, as a matter of law, should have found to the contrary.

It does not require citation of authority to establish the proposition that the issue of contributory negligence is normally one of fact. On this issue, the trial court has no legal right to grant motions for a nonsuit or directed verdict or to enter a judgment notwithstanding the verdict (nor has the appellate court the legal right to affirm orders granting such motions or to reverse a verdict) except in those rare cases where there is no evidence, or no reasonable inference from the evidence, that would support a verdict for the plaintiff. In reviewing the propriety of orders granting such motions, only the evidence most favorable to the plaintiff need be considered, and all conflicts in the evidence must be resolved in favor of the plaintiff. The appellate power begins and ends with the determination as to whether there is any evidence, or any reasonable inference from the evidence, that would support a verdict for the plaintiff. These rules are elementary. The majority give lip service to them, but, in my opinion, simply disregard them.

The majority assume that whatever duty was owed by the defendant to plaintiff was violated. There is little discussion as to the precise nature of that duty. It is self-evident that, before it can be determined if plaintiff, as a matter of law, was contributively negligent, we must know and discuss the duty owed by defendant to plaintiff. The jury could have found, and on this appeal we must presume it did find, that defendant was negligent not only in operating its train at 50 miles per hour under the circumstances, not only in failing to apply the brakes before they were applied, and not only in failing to give adequate warning, but could and we must presume did find, that defendant was negligent in building the pathway^* between the crossing and station platforms in the manner it did when it knew that its trains would overhang the rails 3 feet, and the pathway 14½ inches. If it was negligence for defendant to run a train as it did that had a 3-foot overhang beyond the rails and a 14½-inch overhang over the pathway, then the plaintiff was not guilty of contributory negligence simply because he walked on the pathway with his feet over 3 feet from the rails.

Negligence and contributory negligence are not abstract concepts, but must be determined by the facts of the particular case. What are the pertinent facts? Here the railroad knew that the pathway involved was' to be used by a large number of people. The pathway was designed and constructed by the defendant for the use of these people. The railroad invited the public to use it. At the Bay Meadows crossing, and at the Hillsdale station, at the two ends of the pathway, there were large paved platforms constructed flush with the rails with a white line carefully painted on them that indicated the danger zone near the rails. This raises the reasonable inference that the railroad was actually aware of the danger of the overhang and conceived its duty to be to warn the public of the danger on these portions of the area involved. Then between these two extremities, for a distance of about 600 feet, the railroad designed and constructed a connecting asphalt pathway. This was constructed below the level of the rails at the level of the ties. It was 8 feet wide. The closest edge of the pathway was 1 foot 9 inches from the rails. There was no physical reason why the pathway had to be constructed close to the rails, the right-of-way in the area being quite wide and level. These facts raise the natural inquiry as to why, if the defendant believed the two terminals were places of danger requiring a white line to show the areas of danger, a white line was not also necessary on the 600-foot pathway? The engine involved overlapped the rails for 35% inches, and overlapped the pathway 14% inches. The plaintiff’s feet, when he was hit, were not only over 3 feet from the rails, but were on, and well within, the very pathway designed and constructed by the railroad for the use of persons having the status of plaintiff. Under these circumstances, could the jury not find that the railroad by constructing the pathway as it did, impliedly represented to persons rightfully using it that it was a safe place on which to walk ? Could the jury not find that plaintiff in using the pathway as it was intended to be used was not contributively negligent? The answer to these questions seems so clear that further discussion should be unnecessary. Plaintiff saw the pathway constructed as described. He used it for the very purpose that defendant intended that it be used. Certainly, the mere presence of the pathway constituted an invitation to walk on it. Constructed as it was, the jury could have found, and we must presume it did so find, that included within the invitation was the representation that the entire paved area was safe. Thus, so far as the duty of the defendant is concerned, the jury could have found, and we must presume it did find, that defendant invited plaintiff to use the pathway, owed a duty to him and others to maintain all of it in a safe condition, and represented that all of it was a safe place on which to walk.

If these conclusions are sound, they necessarily dispose of the question as to whether plaintiff was guilty of contributory negligence as a matter of law. Of course he was not. The defendant is forced into the position of asserting, and the majority opinion impliedly approves the assertion, that every pedestrian who accepts defendant’s invitation to use the pathway, which it designed and constructed, by that very use, as a matter of law, is guilty of contributory negligence by using the pathway, in that he cannot assume that the pathway is safe but must assume that it is unsafe. That this is not the law seems clear. Mr. Justice Dooling in discussing the law applicable to a factual situation not different in principle to the one here involved, stated the applicable law as follows in Cameron v. City of Gilroy, 104 Cal.App.2d 76, 80 [230 P.2d 838] : “The ramp [constructed by the city for the use of pedestrians] was patently designed for pedestrian traffic and for that purpose alone, and the casual pedestrian would be readily persuaded, without giving the matter further thought, that he might safely use a facility obviously supplied by public authorities for his convenience as a member of the public. The appellant city is in the position of asserting [as does defendant in our case] that every pedestrian who accepted its invitation to use this ramp which it designed and constructed for that very use must be held as a matter of law to have assumed the risk of injury. The conduct of a person of ordinary prudence is the legal standard in such cases and the court was well within the bounds of its fact finding power in determining that a person of ordinary prudence would have used this facility under the circumstances. ’ ’

The majority say that plaintiff was eontributively negligent because, although well within the limits of the path, he walked so close to the rails that the court must say that, as a matter of law, he was guilty of contributory negligence. A reasonable man, say the majority, should have known that the area where he was walking was dangerous. This is an unwarranted conclusion. Of course, the mere existence of railroad tracks is a warning of danger and a person walking on the tracks must anticipate, at his peril, the presence of trains. It is equally true that a reasonable man knows or should know that a train or engine overhangs the rails to some extent. Within that distance from the rails a reasonable man knows or should know that he is in a position of danger. He is required to exercise the same care of self-protection that is required of a person on the tracks. But what is the distance from the rails that a reasonable man should know is a position of danger ? Certainly, there is some distance so close to the rails that any reasonable man would say is a position of danger. Within that undefined distance we can safely say that a pedestrian has voluntarily placed himself in a position of danger, and, if hurt, is guilty of contributory negligence as a matter of law. This conclusion was properly reached in those cases cited by the majority holding that a person walking within 6 inches or a foot of the rails is guilty of contributory negligence as a matter of law. But the other extreme also exists. There is some undefined distance from the rails that to any reasonable man is a position of safety. In that area we can say that a person just by walking there, is not, as a matter of law, guilty of contributory negligence. We do not know whether that distance is 4, 5, 6, or more, feet from the rails, but whatever it is, once determined, persons in that area are free from contributory negligence as a matter of law. But in between those two extremes there exists an area where the question as to whether plaintiff was or was not negligent becomes a question of fact for the jury. That is this case. The test is whether a reasonable man, under the circumstances here present, should know that an engine overhangs the rails for a distance of 3 feet.

Certainly, until I read this record, and I have ridden trains as much as most, I did not know that fact. Until I read this record I would have assumed that I was in a safe position if I stood or walked 3 feet from the rails. This would be true whether there was or was not a pathway constructed by the railroad for me to walk upon. The pathway, constructed as it was, constituted an invitation. Its existence aggravates the situation. But the majority broadly imply that the pathway, instead of being an invitation to pedestrians to use it, and instead of constituting an implied representation that it was a safe place on which to walk, constituted, by its very presence, a warning that it was a place of danger, and that anyone walking on it was, as a matter of law, contributively negligent. The majority come to this startling conclusion on the theory that they are bound to do so because of the holding in McKeown v. Northwestern Pac. R. R. Co., 20 Cal.App.2d 324 [66 P.2d 1250]. That ease dealt with an accident on a loading platform. Here we are dealing not with a loading platform, in the literal sense, but with a pathway built and designed by the railroad for pedestrians to walk upon. This means walking in either direction, some pedestrians facing oncoming trains and some with their backs to them. It may be that a reasonable man knows or should know that a loading platform has to be constructed close to the rails and within the danger zone of overhanging equipment, for the convenience of passengers in getting on or off trains and in loading or unloading baggage. In that sense a loading platform may, per se, be a warning of danger. Perhaps users of such a platform should be required to face the rails and anticipate injury. On this issue I express no opinion, because it is not here involved. There are other facts that serve to distinguish our case from the McKeown case. These distinctions are fully and fairly set forth in the majority opinion, and need not be repeated here.

For these reasons, I believe that, under the facts here existing, the issue of whether plaintiff was guilty of contributory negligence was a factual one, that the finding of the jury that he was not is supported, and that the trial court erred in entering a judgment notwithstanding the verdict. Therefore, that judgment should be reversed.

Appellant’s petition for a hearing by the Supreme Court was denied January 25, 1956. Gibson, C. J., and Carter, J.. were of the opinion that the petition should be granted.

* There is considerable discussion in the briefs as to whether this construction was a "pathway,” a "walkway,” or a "platform.” The witnesses used all three terms. If any different legal results follow from the use of one term or another, then that term most favorable to plaintiff must be adopted, this being an appeal from a judgment notwithstanding. I have decided to use the term "pathway” because I believe that term most accurately describes the actual condition.