Pennington v. Southern Pacific Co. , 146 Cal. App. 2d 605 ( 1956 )

DOOLING, Acting P. J.

I concur in the judgment. I cannot concur in the approval, even tacit, of that portion of the stop, look and listen instruction which requires the plaintiff “if necessary, to alight from his vehicle, go forward a few steps and take advantage of the view thus afforded.” Despite the fact that Mr. Justice Holmes by his dictum in Baltimore & O. R. R. Co. v. Goodman, 275 U.S. 66 [48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R 645], gave an impetus to this doctrine which apparently carried our supreme court with it in Koster v. Southern Pac. Co., 207 Cal. 753, 762 [279 P. 788], I had thought that the repudiation of this dictum of Holmes in 1934 by a unanimous court in Pokora v. Wabash Ry. Co., 292 U.S. 98 [54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R 1049], had turned the tide in this state against what is a patently unrealistic and frequently ridiculous requirement. The same view of the later California decisions was taken by the United States Circuit Court in Southern Pac. Co. v. Souza, 179 F.2d 691, 693; and in Green v. Key System Transit Lines, 116 Cal.App.2d 512, 516 [253 P.2d 780], the other division of this court characterized the rule of the Goodman case as “the rather unrealistic doctrine of ‘stop, look and listen’ . . . evolved by Mr. Justice Holmes, ” stating that since the announcement of that doctrine “the law as to the duty of a vehicle driver . . . has undergone considerable change. ’ ’ Many of the later California cases are collected in the Souza and Green cases and I consider it unnecessary to do more than refer to those citations.

The absurdity of the rigid rule requiring the driver to get out of his vehicle in every case where he cannot otherwise get a clear view of the tracks was so clearly stated by Mr. Justice Cardozo in the Pokora case, 292 U.S. at pages 104-105 that I content myself with a quotation:

“Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. [Citing cases.] Often the added safeguard will be dubious though the track happens to be straight, as it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of 30 miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction.”

The further criticism found in the note in 56 A.L.R. at page 654 is equally cogent:

“In most situations, however, the driver of a car, unaccompanied, considering the advisability of leaving his ear and going to a point from which he can get an unobstructed view of the track, is as likely, in the exercise of reasonable care, to decide against that course as in favor of it, for the reason that from his point of view there is as great a possibility, if he does adopt that course, that he may be struck by a train which comes in sight after he turns his back to return to his car, as there is that, if he does not adopt that course, he may be struck by a train which he would have seen if he had left his ear and gone to the track. Save in exceptional situations above referred to, it would seem that the logical application of the doctrine would require the driver, as soon as he returns to his car, to go back again to the track, or to the point from which he could get an unobstructed view, and repeat the process indefinitely until assured that there would be no other trains.”

I am convinced that the time is long overdue for the California courts to repudiate in express terms this ridiculous refinement of the so-called stop, look and listen rule.