I dissent. Conceding that some of the instructions given were erroneous and that the error was prejudicial, the consideration of this appeal is reduced to the single question, "Was the evidence herein legally sufficient to support a verdict in favor of plaintiff?" If it was the trial court was justified in granting the new trial and the order should be affirmed. If it was not the trial court should have directed a verdict for the defendant, and any error in the instructions would, therefore, be immaterial and would not justify the granting of a motion for new trial. It is my conclusion that the undisputed evidence herein shows the decedent to have been guilty of contributory negligence as a matter of law and that for this reason the order granting the new trial should be reversed. I do not predicate this conclusion in the least upon the so-called "stop, look, and listen rule," which is discussed at length in the prevailing opinion. To my mind that rule is a false quantity in this case, and I am willing to concede at the outset that it has no application herein.
I recognize the existence of the so-called "railroad station rule" and that its effect, when applicable, is to increase thequantum of care required of the railroad company, and to correspondingly decrease the quantum of care required of the passenger, but I question the applicability of this rule to the situation here under consideration. It is to my mind a misnomer to speak of the building referred to in the testimony herein as a "railroad station." It consisted solely of *Page 206 three walls and a roof. It was nothing more than a shelter where intending passengers and others might seek protection from the weather. It seems inaccurate to speak of this as "the usual stopping place of the cars." It is shown by the undisputed testimony that cars stop here only on signal from a passenger desiring to alight or from an intending passenger desiring to board a car, and that decedent had given no signal or intimation of her intention to board a car. It is alleged in the complaint herein and denied in the answer that there was at the place of the accident a sign reading "Cars Stop Here." There is no evidence in the record tending to prove this allegation and it must, therefore, be taken to be untrue. I agree that it is not necessary in order to constitute a station that it should have baggageroom, ticket offices, company employees, etc., and concur in the definition approved in the prevailing opinion "that the word `station' would cover any place where trains usually and ordinarily stop." It seems clear to me that this is the broadest and most inclusive definition which can justly be used in considering the applicability of the "railroad station rule" as affecting the quantum of care to be exercised by railroad companies and their passengers. This must be so because the foundational reason for the "railroad station rule," which requires greater care from the railroad company and less from the passengers, rests upon the very fact that trains usually stop there, and that passengers are entitled to rely to some extent upon that custom. The place where this accident occurred was not such a place. It is true that the supreme court of Arkansas, inDaniel v. Doyle, 135 Ark. 547 [204 S.W. 210], said that the word "station" includes a flag station, but if the opinion in that case is examined it will be found that the language there used is wholly inapplicable to the question here under consideration, and should not be regarded as authority herein.
The facts disclosed by the undisputed testimony are that there was a space of six feet between the "station" and the nearest railroad track, leaving a clear space of at least three feet between the "station" and the overhang of the car; that the decedent proceeded from a position of safety across the intervening clear space immediately in front of the oncoming car and so close thereto as to be unavoidably struck thereby, without either looking or listening, and that if she *Page 207 had looked she could not have failed to see, and if she had listened she could not have failed to hear the approaching car. As was said by this court in the case of Kauffman v. MachinShirt Co., 167 Cal. 506 [140 P. 15]: "It is true that ordinarily the question of contributory negligence is one largely of fact for the consideration of the jury, but where the standard of conduct required of persons under given circumstances has been plainly neglected by the person seeking relief, it then becomes a question of law." The prevailing opinion concedes that in the cases of Klusman v. Pacific Electric Ry. Co., 190 Cal. 441 [213 P. 38], and Ross v. Pacific Electric Ry. Co., 39 Cal.App. 658 [179 P. 538], the injured person in each case was guilty of contributory negligence as a matter of law, but refuses to apply that conclusion to what appear to me to be precisely equivalent facts in the instant case. In the Ross case the act of negligence which precluded recovery was the plaintiff's act in proceeding from a place of safety across an intervening clear space of forty-three inches in front of an approaching car, without looking or listening therefor. The difference between the two cases is the difference of seven inches in the width of the intervening space. In the Klusman case the injured plaintiff was not so utterly negligent as was the decedent in the case at bar. Mrs. Klusman did look in one direction for an approaching car before stepping so close to the track as to be in danger, but she did not look in the other direction for the approach of a car because, as she testified, she did not know that cars ran both ways on that track. This court was unanimous in that case in holding that "If the plaintiff knew that cars were operated on the middle track in both directions she was bound in the exercise of ordinary care to look in both directions before stepping upon the track. If she did not know that cars were operated in both directions upon the middle track she was negligent in assuming that cars were only operated in one direction without taking the precaution to look in the other direction as well. From either point of view the conclusion of the trial court that she was guilty of negligence as a matter of law was correct." The prevailing opinion herein seems to conclude that these cases are rendered inapplicable by the circumstance that the accidents there involved occurred at street intersections. If we were here considering *Page 208 questions of negligence and contributory negligence as related to the duty of a railroad company to keep its station premises in a safe condition as to the floors and platforms thereof, a distinction could well be drawn between a case involving an accident on premises owned by the railroad company and one occurring in the public highway where the premises are not under the exclusive control of the company. But we are here considering the question of the correlative duties of the railroad company to exercise the highest degree of care in the operation of itstrains for the safety of its passengers and intending passengers, and of the passengers to exercise ordinary care for their own safety. One of the reasons supporting the "railroad station rule" is that when a railroad company invites passengers to cross its tracks in boarding or leaving its cars it thereby assumes the duty of exercising the highest care in the operation of its cars upon such tracks for the protection of those passengers, and that such passengers have a right to rely to some extent upon its performance of that duty. I cannot see that this duty is either increased or decreased by the circumstance that an intersecting highway may cross the tracks at or near the point in question. I am convinced that if the "railroad station rule" is applicable in the instant case it was equally applicable, and to like extent, in the Klusman and Ross cases. As a matter of fact, the location of the accident in the Klusman case partook more of the character of a railroad station and station premises than in the case at bar, because it was the terminus of two of the three railway tracks at that place. The "railroad station rule" was formulated and applied in cases involving accidents which occurred at conventional railroad stations at which trains do usually and ordinarily stop. The reason for the rule is that a passenger or intending passenger at such a station may justly expect that if a train is approaching it will be in the process of coming to a stop, and will come to a stop, at the station, and that its approach, therefore, will not create such a dangerous situation as is involved in the approach of a train or car at other places. To apply this rule to a place at which trains do not usually and ordinarily stop, merely because the same is called a "station," would seem to me to be an unwarranted extension of the rule. Even if it be assumed that the "railroad station rule" *Page 209 is properly applicable to the present situation, the fact remains that the duty rested upon the decedent at all times to exercise ordinary care for her own protection. While the quantum of care requisite to constitute "ordinary care" varies with the circumstances, it seems to me that it must, under the circumstances here shown, amount to something more than zero, and it appears to me from the evidence herein that the decedent exercised no care whatsoever, not even the slightest.
Lennon, J., and Waste, J., concurred.
Rehearing denied.
Myers, C.J., Lennon, J., and Waste, J., dissent from the order denying a rehearing.