Under the view which we take of these two cases, they may be considered and determined in one opinion.
Betsey Warren and her daughter, Mrs. Green, both women of mature age, and in possession of all their natural senses and faculties, and of good intelligence, were traveling in a small market-wagon drawn by one horse, and when crossing the railroad track of defendant at C Street, in the city of San Bernardino, a collision occurred with a moving train of defendant, by which Mrs. Warren was injured and Mrs. Green killed. No. 951 is an action by Mrs. Warren and her husband to recover damages for the injury to the former; and No. 950 is an action brought by relatives of Mrs. Green, deceased, to recover damages for her death. In each case there was a verdict and judgment for plaintiffs; and in each case defendant appeals from the judgment and from an order denying its motion for a new trial. In each case defendant moved for a nonsuit upon the ground, among others, that Mrs. Green and Mrs. Warren at the time of the collision were guilty of contributory negligence, which precludes any recovery. We think that upon this ground the motion for a nonsuit should have been granted in each case, and that the verdict subsequently returned was not *Page 3 warranted by the evidence, and that therefore the order denying the motion for a new trial should be reversed.
It has long been established by the decisions of this court — as well as of other courts — that in cases like these at bar, where the facts are settled, and it clearly appears that the injured party did not exercise ordinary care, the question of contributory negligence is a question of law. In Fernandes v.Sacramento City Ry. Co., 52 Cal. 45, the court say: "In an action to recover damages for an injury to the person, sustained by the negligence of the defendant, the question of contributory negligence is to be decided by the court as a question of law when the facts are clearly settled, and the course which common prudence dictates can be readily discerned." In Flemming v.Western Pacific R.R. Co., 49 Cal. 253, the court say: "The motion for a nonsuit should have been granted. When the facts are admitted or established by uncontradicted evidence the question of negligence is a matter of law for the court," citing cases. InGlascock v. Central Pacific R.R. Co., 73 Cal. 137, the court, after reciting that the question of negligence is generally for the jury, say: "Yet when it appears from the undisputed facts — shown by the plaintiff's own evidence — that the deceased has not exercised such care as men of prudence usually exercise in positions of like exposure and danger, the question is one of law for the court," citing former cases. In Pepper v. SouthernPacific Co., 105 Cal. 389, the court said: "It is well settled in this state and elsewhere, that if his negligence contributed proximately to the accident resulting in his death, the plaintiff cannot recover, even though the defendant negligently omitted," etc. In Herbert v. Southern Pacific Co., 121 Cal. 227, the court said: "But the cases arising from injuries suffered at railroad crossings have been so numerous, and upon certain points there has been such absolute accord, that what will constitute ordinary care in such a case had been precisely defined, and, if any element is wanting, the courts will hold as matter of law that the plaintiff has been guilty of negligence. And when injury results which might have been avoided by the use of proper care, the plaintiff cannot recover, although the defendant has also been guilty of negligence. In this special case the amount of care, as well as the nature of it, has been settled. The railroad track of a *Page 4 steam railway itself must be regarded as a sign of danger, and one intending to cross must avail himself of every opportunity to look and to listen for approaching trains." The doctrine firmly settled by the above cases and others to the same effect is the law of this state. And we think the undisputed facts in the case at bar clearly bring it within the principle above stated, and show that, as a matter of law, the parties in control of the wagon at the time of the collision were guilty of negligence which directly contributed to the injuries complained of, and that therefore there can be no recovery.
The following facts clearly appear: Mrs. Warren and her daughter, Mrs. Green, lived in the country, a few miles from the city of San Bernardino. They both lived at the same place, although in separate houses. On the occasion of the accident they went to the city on the same common business, — to wit, to take their produce to market and buy groceries. The wagon used by them was drawn by a horse belonging to Mrs. Warren's husband, and the wagon to either her husband or son-in-law. The horse was well known to both of them. It was known by both of them to be somewhat fearful of a moving railroad train when quite near it, but was not hard to stop or control. Returning home from the city they traveled northerly on C Street. The railroad track of appellant — an ordinary railroad running through the country, on which cars are propelled by steam in the usual manner — runs east and west, and crosses C Street near foundry buildings, which are on a piece of land inclosed by a picket-fence. The point of collision is within the territorial limits of the city, but not in a thickly settled part of it. The women approached the railroad track at a time when a train was due from the east, which fact was known to Mrs. Green, who was driving, and must have been known to Mrs. Warren from a remark made by Mrs. Green hereinafter noted. For quite a long distance from the crossing the railroad to the east of C Street could not be seen from that street, on account of natural and artificial obstructions to the vision, except at a point from 110 to 138 feet from the crossing, where, through a gate, or opening, a part of the railroad lying some distance from the crossing could be seen, but no part of it could be seen within 333 feet of the crossing. As they passed by this opening they looked through it, and, not seeing any train, Mrs. Green remarked: *Page 5 "I think the train is gone." From that point no part of the railroad track to the east could be seen until a point about thirty-three feet from the crossing was reached, where, by looking over a picket-fence which stands there, or through the pickets, the track can be seen for about 333 feet. When the line of the right of way of the appellant, which is twenty-five feet from the center of the track, is reached, there is an unobstructed view of the track to the east for nearly 1,000 feet — to a point where the track curves. The women did not look over or through the picket-fence; they did not look to the east when they came to the line of the right of way; they did not stop to listen; they drove right along without looking to the east or stopping to listen, until the horse was within a few feet of the track; and then, seeing the train nearly upon them, the horse was whipped and made to cross immediately in front of the locomotive, which struck the wagon and caused the damage. The horse was trotting along C Street; but Mrs. Warren testified that it had slowed to a walk before they had reached the right of way; and that must be taken to be the fact for the purpose of this case, although she said it was a "fast walker." However, after they had looked through the gate, or opening, as above stated, and had come into the part of the street where the view of the track to the east was obstructed, they drove, either at a trot or at a fast walk, up to within a few feet of the track without looking or stopping to listen. This was extreme carelessness and recklessness. If they had stopped to listen, or after passing the foundry had looked either over or through the picket-fence, or had looked when they came to the line of the right of way, they would have seen the approaching train, and could have avoided any danger. They could have escaped by stopping, instead of whipping the horse in front of the locomotive; but carelessness had been committed before reaching that point. Their conduct was simply that of one who without any care whatever recklessly goes in front of a rapidly and nearly approaching train; and if that conduct does not constitute contributory negligence, then a railroad company must be held liable for damages in all cases of collision, without any reference to the conduct of the parties injured. The fact that they looked to the east as they passed the gate, or opening, farther up the street, as above noted, which was of little benefit to them, is *Page 6 no excuse for not looking or listening at points near the track, where such looking or listening would have been effective.
There is in the briefs of appellant considerable discussion as to the duty of one approaching a railroad to stop and listen before attempting to cross. The general rule undoubtedly is, that he must so stop, because in most cases ordinary prudence requires that he should do so; and the only exception to the rule is, that there may be particular instances where the circumstances would not call for such precaution. The question is fully discussed, and many authorities cited and commented on in Blackburn v.Southern Pacific Co., 34 Or. 215, which is very similar to the case at bar. The court there quotes approvingly from Elliott on Railroads as follows: "As we have said, we do not think that it can justly be affirmed as a matter of law that there is a duty to stop in all cases; but we do think that the duty exists in cases where there is an obstruction to sight or hearing, and that where the surroundings are such that but one conclusion can be reasonably drawn, and that conclusion is, that it is negligence to proceed without halting, the court should without hesitation direct a verdict if no halt is made." And the court held (we quote from the syllabus, which is a correct statement of the opinion) as follows: "The failure of a person about to cross a railroad track, on a highway at grade, to look and listen for an approaching train, or to stop for such purpose, where the view ofthe track is obstructed, or where there is noise which he may control, and which may prevent his hearing such train, is negligence per se, which will bar recovery for an injury resulting from a collision with the train at such crossing." And the court further held — which is an answer to the contention of respondent in the case at bar as to the alleged negligence of the defendant — as follows: "There can be no recovery for the death of one who was struck by a railroad train at a grade-crossing where the evidence showed that, though such train was moving ata rate of speed prohibited by law, the approximate cause of the accident was the negligence of the deceased in approaching such crossing without exercising due caution." The same rule has been declared by this court. (See California cases hereinabove cited, and Holmes v. South Pacific Coast Ry. Co., 97 Cal. 161.) The contention of respondents that they should be allowed to recover notwithstanding the negligence *Page 7 of the parties controlling the wagon, as above stated, because the appellant was also guilty of negligence by failing to give proper signals and allowing the train to move at an unusually great rate of speed, is not maintainable under the decision inHolmes v. South Pacific Coast Ry. Co., 97 Cal. 161. In the case at bar there was conflicting evidence as to the rate of speed and the alleged failure to give the usual signals; but, assuming that the jury had the right to find on these points in favor of respondents, the principle contended for does not apply. In the Holmes case the court, having considered instances in which the said principle might be invoked, says: "But this principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them." The court further says: "This, we think, may be regarded as a correct statement of the law upon this point, and as furnishing a clear and definite rule by which to determine in any case whether or not the negligence of the person injured may be said, in a legal sense, to have contributed to such injury; and when we apply this rule to the case at bar it is at once seen that, even if it should be conceded that there was negligence upon the part of the defendant in its management of the train at the time of and just preceding the accident, still the plaintiff would not be entitled to recover, as such accident could not have occurred without the concurrent and active negligence of the deceased at the time."
Upon the facts in the case at bar, we think it quite clear that Mrs. Warren was responsible for the negligence as well as Mrs. Green; under the circumstances it was their joint duty to be careful, and there is no pretense that she objected to anything done by Mrs. Green.
For the reasons above given the cases must both be reversed.
In each of the above entitled cases the judgment and order denying a new trial appealed from are reversed.
Henshaw, J., and Temple, J., concurred.