Conner v. Southern Pacific Co. , 38 Cal. 2d 633 ( 1952 )

SCHAUER, J.

Defendants appeal from an order granting plaintiffs’ motion for new trial in an action for wrongful death. The motion was granted for asserted error in instructions. We have concluded that the jury were correctly instructed. It necessarily follows that the trial court’s order setting aside the verdict and granting a new trial cannot be sustained.

Bill Conner, plaintiffs’ son, was killed when defendants’ train struck an automobile which was being steered by Conner while in tow of a pickup truck driven by Richard Benson. Benson drove upgrade at a speed of about five miles an hour across defendants’ tracks and did not see the train until it was too late for him to accelerate and pull Conner’s car off the tracks. Visibility was good and both drivers were familiar with the crossing. There is evidence from which the jury could, and its verdict implies that it did, find that, had Conner kept a lookout for his own safety, he would have seen the train¹ and could have signaled to Benson and thereby caused the latter to avoid the accident or he could have escaped from the towed car before it was struck; also, the evidence would support a finding that Conner by seasonably applying his brakes after he was in a position to see the oncoming train could have stopped both vehicles before even the towing ear went upon the crossing. The trial court instructed the jury that Benson was guilty of negligence as a matter of law.² The questions whether the railroad was negligent in the circumstances, whether any such negligence was a proximate cause of the accident, and whether Conner (the deceased) was guilty of negligence which proximately contributed to cause the accident, were left to the jury. This (at least as against plaintiff) was proper, and the instructions upon which such issues were submitted were not erroneous. •

The jury were told that “A traveler approaching a railway crossing with the intent of crossing thereover on a public highway is required, if he does not stop, to approach the tracks with his vehicle under control so as not to render ineffective other precautions required of him, such as looking and listening for the approach of a train, and so that he may be able to stop or turn aside while still in a position of safety upon ascertaining that a train is approaching which might endanger his passage over said track”; and that he must yield the right of way to an approaching train.

The principal argument of the plaintiffs is to the effect that no instruction expressly directed the attention of the jury to the fact—or instructed them that as a matter of law it is a fact—that one guiding a towed vehicle has less control over its progress than does the driver of the towing vehicle. Whether, under the circumstances here, such an instruction on that proposition of fact would have been proper is beside the point; no such instruction was requested and the court was not bound to so instruct of its own motion. Moreover, the fact is obvious without an instruction declaring it. As to the applicable law the jury were properly informed that they must determine whether deceased ‘1 exercised the care and vigilance for his own safety which the circumstances required”; that negligence is “always a relative question—relative to the circumstances of the time, of the place, and of the person or persons”; that “The person in charge of the towed vehicle is bound to exercise reasonable care for his own safety in steering or operating it. Whether proper care has been exercised is a matter to be determined according to the facts of the particular case.” The above quoted instructions correctly and adequately informed the jury as to the duty of care of one in the position of deceased. The record discloses no basis for a determination that the jury did not follow such instructions in arriving at their verdict.

The court appears to have granted the new trial because it decided that the jury were misled by its instructions, which, it concluded, did not sufficiently emphasize the factual proposition that Conner had less opportunity to control the vehicles than did Benson. But the instructions are not erroneous in law or misleading in fact. They correctly informed the jury that Conner should have exercised reasonable care in the circumstances in which he was, and left it to the jury to decide whether he could and should have done anything more than let himself be pulled slowly into the path of the approaching train. Whether instructions which are actually erroneous are cured by other, correct instructions or are prejudicial is a question for the discretion of the trial court (Fennessey v. Pacific Gas & Elec. Co. (1938), 10 Cal.2d 538, 544 [76 P.2d 104]) but where, as here, the instructions are correct, there is no basis for the exercise of discretion, and no legal ground, in that respect, on which a new trial may be granted (Parker v. Womack (1951), 37 Cal.2d 116, 123 [230 P.2d 823]). The inquiry as to whether instructions are erroneous presents purely a question of law (Dodds v. Gifford (1932), 127 Cal.App. 629, 634 [16 P.2d 279]; Markham v. Hancock Oil Co. (1934), 2 Cal.App.2d 392, 395 [37 P.2d 1087]) and if it appears on appeal that a trial court in granting a new trial based its order exclusively upon an erroneous concept of legal principles applicable to the cause, its order will be reversed (Estate of Baird (1926), 198 Cal. 490, 507 [246 P. 324]).

Plaintiffs rely on the statement, quoted with approval from 3 Cal.Jur. 854, in Marchetti v. Southern Pac. Co. (1928), 204 Cal. 679, 683 [269 P. 529], that “a passenger in a machine operated by another cannot be said as a matter of law to have been negligent in not calling the chauffeur’s attention to the danger of a collision.” The statement has no application here. Conner was not a passenger and the question of his contributory negligence was one of fact. In Fairman v. Mors (1942), 55 Cal.App.2d 216, 219-220 [130 P.2d 448],.it was said that “One sitting behind a steering wheel of a towed car is utterly helpless so far as directing the course or conduct of such car.” This statement, in its application to the facts of this case, obviously is incorrect. The record here shows that Conner’s ear was equipped with steering gear, brakes and horn. There is evidence that before the towing and towed vehicles went upon the tracks they were going so slowly and up such a grade that Conner, by applying his brakes, could have stopped both of them in safety.³ Furthermore, he was not as a matter of law “utterly helpless” to alter the course of the vehicles. (See Farrar v. Whipple (1924), 65 Cal.App. 123, 126 [223 P. 80], affirming judgment against one whose negligent steering of a towed vehicle resulted, in injury to others. ) The limited ability of one at the wheel of a towed vehicle to control its travel would not justify his depending entirely, as might (under some circumstances) a mere passenger, on the vigilance of the driver of the towing car. Certainly he would have the duty of exercising ordinary care in watching for traffic, railway trains, etc., in the control of his own car to a reasonable extent, in sounding his horn to warn the driver of the towing vehicle if such action appeared reasonably necessary, and, under the slow speed conditions shown here, in leaving the towed car if reasonably necessary.

Since the jury, correctly instructed, impliedly found upon sufficient evidence that Conner failed to exercise the reasonable care required of one in his position and that his negligence proximately contributed to cause his death, the granting of a new trial upon the ground designated was error.

For the reasons above stated, the order is reversed.

Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.

1 The track to the north, from which direction the train approached, was straight and the view unobstructed for at least a mile from the point, approximately 60 feet from the tracks, where Benson slowed to a speed of about five miles per hour preparatory to crossing the tracks.

2 Because of our conclusion that there is no error adverse to plaintiffs in' the instructions we do not need to consider whether upon undisputed evidence decedent, like Benson, was as a matter of law guilty of negligence which proximately contributed to his death.

3 ‘ ‘ The Court [to witness Benson]: . . . The question, of course, is you towing Ms car and you not putting your brakes on, and he putting it on, I presume, what distance could he have stopped Ms car, which also means stopping yours, too? A. I guess he could have stopped in six or seven feet.

“Mr. Newton [defendants’ counsel]: And he didn’t give you any signal to stop as you were going up the grade, did he? A. No. . . .

“Q. There is a gradual rise as you leave the highway to approach the railroad tracks? A. About a four foot rise from the highway.”