I dissent. The negligence of the defendants is admitted for all the purposes of this appeal, and the only question for our consideration is whether the evidence is legally sufficient to sustain the conclusion of both the jury and the trial judge to the effect that plaintiff was not guilty of contributory negligence. It seems very clear to me that the evidence was such as to sufficiently sustain this conclusion.
In considering such a question as is here presented we must bear in mind a rule well settled by our decisions. As was said inSeller v. Market Street Ry. Co., 139 Cal. 268, [72 P. 1006]: "It has often been said by this court that it is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. As a general rule it is a question of fact for the jury, an inference to be deduced from the circumstances of each particular case, and it is only where the deduction to be drawn *Page 779 is inevitably that of negligence that the court is authorized to withdraw the question from the jury. This is true even where there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn therefrom. If the conceded facts are such that reasonable minds might differ upon the question as to whether or not one was negligent, the question is one of fact for the jury. These rules are so well settled as to render it unnecessary to here do more than state them." InHerbert v. Southern Pacific Co., 121 Cal. 229, [53 P. 651], it was said: "If but one conclusion can reasonably be reached from the evidence, it is a question of law for the court; but if one sensible and impartial man might decide that the plaintiff had exercised ordinary care, and another equally sensible and impartial man, that he had not exercised such care, it must be left to the jury. Our ideas as to what would be proper care vary according to temperament, knowledge, and experience. A party should not be held to the peculiar notions of the judge, as to what would be ordinary care. That only can be regarded as a standard or rule which would be recognized or enforced by all learned and conscientious judges, or could be formulated into a rule. In the nature of things no such common standard can be reached in cases of negligence, where reasonable men can reach opposite conclusions upon the facts." Considering the evidence in the light of these well established rules I can see no warrant for any interference with the action of the jury and the trial court. Viewing the evidence in the light most favorable to plaintiff, as we must in view of the verdict and the action of the trial judge, the following facts must be accepted as established: Neither Mr. Griffin nor any one of his party had ever been over this road before, and he was unacquainted with the situation of the approach to the crossing. The fence preventing any view of the railroad track south of the crossing or any train thereon, to any one traveling in an automobile along the highway from the east toward the crossing, as Mr. Griffin was doing, terminated not more than sixteen feet from the east rail of the railroad, the side of the locomotive projected over the east rail three feet, and plaintiff's seat in the automobile was eight feet from the front of the machine, leaving a space of not more than five feet between the point from which a train approaching from the south could be seen and the railroad track within which to stop the machine in a place of *Page 780 safety. There was no indication of an approaching train at any time prior to the automobile reaching a point from which the view of the track to the south was obstructed by the house and fence. Mr. Griffin who had theretofore been driving very slowly stopped his machine absolutely at a point thirty-five feet from the railroad track for the purpose of listening, and at that point there was no indication to him of any approaching train. He then allowed his machine to roll down the grade toward the crossing, using no power, at a rate of from three to four miles an hour and heard or saw nothing to indicate the approach of a train until he reached a point from which he could see the railroad track to the south of the crossing. He then for the first time discovered that a train was approaching. There is nothing to compel a conclusion that he was negligent in not having before observed the approach of the train. The space of safety beyond the obstruction was so narrow, not more than five feet, that it is by no means apparent that Mr. Griffin should have observed its existence at any time before reaching the end of the obstruction to his view. He should, of course, have been prepared to stop his machine, if necessary, at the last place before crossing the track, which a reasonable man in his position and with his knowledge would have deemed effective for the proper observance of the track. In all other respects, it is practically admitted that he exercised every precaution. Unfamiliar with the conditions at the crossing, as has been said, it is not apparent or evident, in view of the extreme narrowness of the zone of safety, that he should have observed that there was any point between him and the track that would be effective for such observation. Under such circumstances, unless it is to be held that the situation was such, as matter of law, as to require him or one of his companions to dismount from the machine, go forward on foot and ascertain the actual situation, he could do only what he did, proceed at the slowest possible pace, listening and looking for any indication of an approaching train. I am satisfied that the situation here was not such, in view of all the circumstances, as to enable the court to say as matter of law that it was essential to the exercise of reasonable care on his part that any such inspection on foot should be made. No such precaution has ever been declared essential in this state as to the driver of a vehicle about to cross a railroad track. To the contrary, the decisions in this state are uniformly *Page 781 to the effect that the obligation to look up and down the track is only enjoined where by observation from the vehicle, the approaching train could be detected. (See Martin v. SouthernPacific Co., 150 Cal. 124, [88 P. 701]; Vance v. Atchison etc.Ry. Co., 9 Cal.App. 20, [98 P. 41]; Eaton v. Southern PacificCo., 22 Cal.App. 461, [134 P. 801].) The point was necessarily involved, though not discussed, in Loftus v. Pacific Electric Ry.Co., 166 Cal. 464, [137 P. 34], where the conclusion of a jury that one driving an automobile which came into collision at a crossing with an electric train was not guilty of contributory negligence, was held to have sufficient support in the evidence. It may be conceded that the circumstances of the case may be such as to render such a precaution essential, but here I am satisfied that the question was one solely for the jury and trial judge. The case just cited, in so far as obstructions to view of the track and precautions observed by the plaintiff are concerned, is very similar in principle to the case at bar, and sustains our conclusions on the question of contributory negligence. In view of the facts disclosed by the record therein, the same is true ofCooper v. Los Angeles Terminal Ry. Co., 137 Cal. 229, [70 P. 11]. I know of no California case warranting a contrary conclusion, and it seems to me that the decision of the court in this case is a departure from the well established rule relative to the conclusiveness on appeal of the findings on questions of fact in the trial court in this class of cases, where the evidence is such that reasonable men might well differ on the question of negligence.
I am of the opinion that the judgments should be affirmed.
Sloss, J., concurred. *Page 782