Zibbell v. Southern Pacific Co.

160 Cal. 237, 255, 116 P. 513, 520 (1911)


The accident occurred about half-past nine o'clock in the evening of July 12th. P's occupation was the breeding and training of trotting horses. He was expecting certain of his horses by railroad and was going with a companion to the railroad yards to see whether they had arrived. The night was dark. An electric light about thirty feet above the street was located on the southerly curb line of Tulare Street between tracks 7 and 8, and about sixty feet from the point of the accident, but 'it was not a very good light.' Nothing else illuminated the scene. The shadows were deepened by warehouses to the south of and on the westerly side and by freight cars standing here and there upon the easterly and westerly tracks. The effect of the electric light on one standing in its radiance and looking out was to intensify the outer gloom as it is intensified to one looking from a lighted room into the outer darkness. P's testimony is that it was a very dark night. He and his companion McMahan, on approaching the railroad tracks from the east, stopped and looked them up and down. They saw and heard the freight train in front of them on track 4. They heard the noise of two engines working -- one the freight train engine, the other seemingly a switch engine to the south. They could see the engine of the freight train on track 4. They could hear the puffing of the switch engine to the south and judged it to be a block and a half away. P did not know of the existence of the lead from track 2, where the freight engine then was, to track 5, upon which he was struck. Just before reaching track 5, at a distance of about three feet from the first rail, he and his companion came to a stop and again glanced up and down the tracks, which seemed perfectly clear. They were then standing, however, in the glare of the electric light. Plaintiff looked down the track and could see no light. The tracks which he could see and so far as he could see them were clear. Then as he walked on, hearing the sound of a locomotive in front, he looked in that direction. This locomotive was attached to the freight train and was in the act of starting the train to proceed on its journey. It made much noise. No noise from the south was audible. No bell was rung, no whistle was sounded, no warning shouted, no lantern or other light displayed when suddenly he and his companion were struck by s boxcar being pushed. The question of the contributory negligence of plaintiff was properly submitted to the jury, and they found for P. P was also awarded significant damages well beyond any tort award in California history. The jury's verdict in favor of the P was for the sum of one hundred thousand dollars. Upon motion for a new trial, the court, with consent of P, remitted thirty thousand dollars of this amount. These appeals are taken, therefore, from a judgment in the sum of seventy thousand dollars. It is contended that the damages are so excessive as to force the conclusion that they were given under the influence of passion and prejudice. And herein it is said that the verdict is twice the amount of the largest judgment ever rendered in the state of California in a similar case, and is the largest verdict ever presented to an appellate court for review. Ds appealed.