Plaintiff sued to recover damages for personal injuries occasioned him by reason of the alleged negligence of the defendant in so operating its trains that plaintiff was struck by one of them at the crossing of a street in the city of Pasadena. The negligence charged was the omission upon the part of the defendant company to sound the bell and to close the gates maintained at the crossing at the time of the approach of the train. Upon the taking of all the testimony the court instructed the jury to find a verdict for defendant, which the jury did, and the court's ruling in this regard is the subject of this appeal.
The consideration of the question necessitates the presentation of the evidence, which is here given, as favorably to the plaintiff as the facts warrant. Plaintiff, about ten o'clock at night, was driving two horses attached to a light spring wagon toward the railroad track at a gait which he describes as "a pretty fair trot," and which others describe as a "brisk trot." Colorado Street, upon which he was driving, is seventy-five feet wide, with an electric railroad track running along it a little south of the middle of the street. The sidewalk on the south side of the street is eleven feet wide. An alley thirty feet wide crosses Colorado Street at right angles, and defendant's railroad track also crosses the street in the center of that alley. The train which struck plaintiff's spring wagon consisted of a locomotive, thirteen loaded freight cars, and a caboose. It came from the south through this alley up a steep grade at a speed of about four miles an hour, and having come almost to a standstill at a station just beyond, *Page 679 the engine was laboring heavily to get under way on the up-grade and "was puffing very hard with a loud exhaust." There was evidence tending to show that the engine-bell and the whistle were silent, and it will be assumed that they were. There were gates across the street on each side of the railroad track, and these gates were not closed as the train crossed the street. Colorado Street was paved with asphalt, and plaintiff's horses were newly shod with smooth shoes. He approached the track of defendant without checking the speed of his horses and "looking straight ahead." He says he could not see or hear the train, and first saw it when the noses of his horses were about on the railroad track. According to the map or plat of the locality found in the record, as well as according to the undisputed evidence of witnesses, the buildings in the vicinity were so disposed that, if the plaintiff had been on the alert and driving with reasonable caution, he might have caught sight of the approaching train in ample time to have avoided the accident. Plaintiff was, and had been for six years, familiar with the crossing, but he took no precautions whatever before driving upon it. He did not stop. He did not slow up. He did not look. He did not listen. The clattering of his horses' feet and the noise of his wagon would certainly have interfered with his hearing the approaching train. He was moving faster than the train and failed to take any precautions by slowing up to listen, but had he been on the alert he could have heard and seen the train in time to have avoided the accident. It is difficult to understand, then, how he could have come into collision with this slow-moving locomotive, excepting that he either absent-mindedly or recklessly approached and drove on the track. Indeed, from his own testimony, it is plain that he approached the crossing with a total disregard of its dangers. In substantiation of this is his statement to one of the witnesses, which is not denied, that "My main idea was to get home. I was not paying any attention to anything." Under the facts, then, the plaintiff, after accepting the invitation to proceed, extended to him by the open gates, used no precaution whatsoever, did absolutely nothing for his own protection and safety. He did not lessen the speed of his horses; he did not listen for the approach of the train, which was made audible to others some time before he drew near the crossing; *Page 680 he did not look for the train, as he himself testifies he kept his eyes straight ahead; and the first intimation he had of its approach was when his horses shied away from the engine.
The case thus presented is not one as to the degree or amount of care which should be exercised by one about to cross a railroad under the invitation to proceed given by the open gates, but whether under such circumstances a man may fail or decline to exercise any care whatsoever, treating the open gates as a positive assurance of safety. Of course, in any case such as this, where it is shown that a plaintiff has exercised some care, the question whether or not the care actually exercised was due and sufficient will always be a matter for determination by the jury. But where, as here, the unconflicting evidence shows that he exercised no care whatsoever, it becomes a question of law to say whether or not such a plaintiff's case shall be submitted to the jury. If it is so submitted, it can only be upon the theory that the open gates were an absolute warranty of safety, justifying the plaintiff in proceeding without any heed or caution. It is for this proposition that appellant contends. But such we do not understand to be the law. A railway crossing is itself a place of danger and is an effectual warning of danger, a warning which must always be heeded, and the exercise of ordinary care in traveling over such a place is not excused by the negligent omission of the railway company itself to exercise reasonable care. (Green v. Southern California Ry. Co., 138 Cal. 1, [70 P. 926]; Herbert v. Southern Pacific Co., 121 Cal. 227, [53 P. 651]; Lambert v. Southern Pacific Co., 146 Cal. 231, [79 P. 873].) Nor is it the law that when a railroad company adopts safety gates or any other appliance for the protection of the public the public is thereby absolved from all duty of taking care of itself. A person is still required to exercise due and ordinary care, and while the quantum of care which will be reasonable may be less where the gates are provided and are relied upon by the traveler, still the gates themselves are not an assurance and a warranty such as to justify a traveler in going blindly ahead in total disregard of all ordinary precautions, as did the plaintiff in this instance. (Greenwood v.Philadelphia etc. Ry. Co., 124 Pa. 572, [17 A. 188, 10 Am. St. Rep. 614]; Rangeley v. Southern R.R. Co., 95 Va. 715, [30 S.E. 386]; *Page 681 Pennsylvania etc. Ry. Co. v. Pfuelb, 60 N.J.L. 278, [37 A. 1100]; Dawe v. Flint etc. Ry. Co., 102 Mich. 307, [60 N.W. 838];Romeo v. Boston etc. R.R. Co., 87 Me. 540, [33 A. 24]; Thompson on Negligence, sec. 1614.)
The case of Ellis v. Boston etc. R.R. Co., 169 Mass. 600, [48 N.E. 839], contains a critical review of the matter and it is said: "The raising of the gates was, no doubt, a circumstance which justified the plaintiff in starting to cross the railroad when he did, and he had a right to expect that if any engine or train was approaching the crossing on the inbound track, a whistle would be sounded or a bell be rung. But in attempting to cross the railroad he was bound, in the exercise of ordinary care, to himself exercise his own powers of observation, and to take thought for his own safety; and he was not entitled to have his case go to the jury unless there was evidence from which it could be inferred that he did this. No such inference can be drawn either from his own testimony or that of the other witnesses. The general rule that one who attempts to cross a railroad track must reasonably use his own powers of observation to assure himself that there is no danger from approaching trains is clear. (Chase v. Maine Coast R.R. Co., 167 Mass. 383, [45 N.E. 911], and cases cited.) And the rule applies to one from whom a train approaching upon a second track is hidden by a train which has just passed. (Bancroft v. Boston etc. R.R. Co., 97 Mass. 275;Winslow v. Boston etc. R.R. Co., 165 Mass. 264, [42 N.E. 1133].) While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact and the facts that no whistle was sounded and no bell was rung are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening and taking thought for his own safety. He cannot rely wholly upon them, and cannot recover without showing more as to his own conduct than that he so relied. (Butterfield v. Western Ry.Corp., 10 Allen, 532, 87 Am. Dec. 678; Merrigan v. Boston etc.R.R. Co., 154 Mass. 189, 28 N.E. 149; Tyler v. Old Colony R.R.,157 Mass. 336, [32 N.E. 227].) We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for defendant was rightly ordered. Exceptions overruled." *Page 682
Excepting for the presence of gates, this case is parallel in its facts with Hager v. Southern Pacific Co., 98 Cal. 309, [33 P. 119]; but, as has been said, the presence of gates does not justify the total indifference and disregard to danger which was evinced by plaintiff in this case.
The judgment appealed from is therefore affirmed.
McFarland, J., Lorigan, J., Angellotti, J., and Shaw., J., concurred.