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Torts: Contributory Negligence: Stop, Get out, Look and Listen RuleAuthor(s): A. B. A.Source: California Law Review, Vol. 23, No. 1 (Nov., 1934), pp. 112-114Published by: California Law Review, Inc.Stable URL: http://www.jstor.org/stable/3476819 .

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112 23 CALIFORNIA LAW REVIEW

There is a division of authority on the extension of the principle to situations where property only is imperiled.13 It is submitted that the decision of the California court, leaving the question of contributory negligence in the proper case to the jury, is the better view. Can there be such a fundamental difference between action to save property and action to save life that in the case of the former a jury cannot reason- ably find the rescuer to be free from contributory negligence, while in the case of the latter it becomes a matter for the jury to say whether or not the action was that of a reasonable man under the circumstances? There is no legal duty to intervene to save either property or life. In neither case, however, should the humanitarian impulse of the volunteer be discouraged by making his conduct necessarily contributory negli- gence as a matter of law.

R. R. W.

13 Extending the principle: Henry v. Cleveland, etc., R. R. (C. C. S. D. Ill. 1895) 67 Fed. 426; Liming v. Illinois Cent. R. R. (1890) 81 Iowa 246, 47 N. W. 66; Leavenworth Coal Co. v. Ratchford (1897) 5 Kan. App. 150, 48 Pac. 927; Wardrop v. Santi Moving Exp. Co. (1922) 233 N.Y. 227, 135 N. E. 272; McKay v. Atlantic Coast Line R. R. (1912) 160 N. C. 260, 75 S. E. 1081, Ann. Cas. 1914C 413; Thompson v. Seaboard Air Line R. R. (1908) 81 S. C. 333, 62 S. E. 396, 20 L. R. A. (Nr. s.) 426; Temple Elec. Light Co. v. Halliburton (Tex. Civ. App. 1911) 136 S. W. 584. Contra: Condiff v. Kansas City, etc., R. R. (1891) 45 Kan. 256, 25 Pac. 562; Cook v. Johnston (1885) 58 Mich. 437, 25 N. W. 388, 55 Am. Rep. 703; McManamee v. Missouri Pac. Ry. (1896) 135 Mo. 440, 37 S. W. 119; Eversole v. Wabash R. R., supra note 12; Johnson v. Terminal R. Ass'n of St. Louis (1928) 320 Mo. 884, 8 S. W. (2d) 891; see headnote to Eckert v. Long Island R. R., supra note 5; Note (1929) 77 U. or PA. L. REV. 393.

TORTS: CONTRIBUTORY NEGLIGENCE: STOP, GET OUT, LOOK AND LISTEN RULE.-The plaintiff had been injured when his truck was hit at a grade crossing by one of the defendant's trains. He had stopped to look and listen before starting to cross the tracks, but a string of box cars on an intervening switch track had almost completely obscured his view of the main track, on which the train that struck him was travelling. There was considerable traffic across the intersection, but the defendant apparently maintained no signalling devices. The train had been moving at an illegal rate of speed and had not blown its whistle nor sounded its bell as required by law. The lower courts had held the plaintiff guilty of contributory negligence as a matter of law. Held, judgment reversed.'

The lower courts relied on Mr. Justice Holmes' dictum in the famous case of Baltimore & Ohio Railroad Company v. Goodman2 that "... if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look."3 The Supreme Court, after pointing out that this statement was dictum, refused to apply the rule to the facts before it. It showed that in the instant case it might

1 Pokora v. Wabash Ry. (April 2, 1934) 292 U. S. 98, rev'g (C. C. A. 7th, 1933) 66 F. (2d) 166, Notes (1934) 22 Gro. L. J. 869, (1934) 29 I . L. REV. 255.

2 (1927) 275 U. S. 66. 3 Ibid. at 69.

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RECENT DECISIONS 113

have been more dangerous for the plaintiff to get out of the truck before crossing the switch track and still more so to stop on the switch track itself, saying: "If we assume that by reason of the box cars, there was a duty to stop again when the obstruction had been cleared, that duty did not arise unless a stop could be made safely after the point of clear- ance had been reached."4 It was pointed out that this could not have been done here, and that the conduct of the plaintiff was not "negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds."5 Adverting to the fact that the Goodman case had given rise to serious conflict in the decisions, the Court stated that the rule there laid down should not be given absolute application, saying: "In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury.... The opinion in Goodman's case has been a source of confusion.., .to the extent that it imposes a standard for application by the judge .... We limit it accordingly."6

It is an interesting question what influence, if any, this decision will have on the California courts. Following an earlier dictum7 in favor of the rule of the Goodman case, the case of Koster v. Southern Pacific Company8 adopted that rule wholeheartedly, using the following lan- guage: ". .. if upon stopping at a place of safety near the railroad track he [the plaintiff] did not have a sufficient view of the situation looking both ways,... the rule of caution required that he should alight from his auto, go forward a few steps and take advantage of the view that would thus be afforded."'* This rule has been followed in all the subsequent cases, the only exceptions being made in situations where signals have been installed or where the plaintiff has been otherwise lulled into a sense of security.'? In view of these exceptions and the

4 292 U. S. at 104. 5 Ibid. 6 Ibid. at 106. 7 Murray v. Southern Pac. Co. (1917) 177 Cal. 1, 169 Pac. 675. 8 (1929) 207 Cal. 753, 279 Pac. 788. 9 Ibid. at 762, 279 Pac. at 792. 1o An exception was first established in Koch v. Southern Cal. Ry. (1906)

148 Cal. 677, 84 Pac. 176, and confirmed in Gregg v. Western Pac. R. R. (1924) 193 Cal. 212, 223 Pac. 553. The authorities will be found collected in Notes (1928) 16 CALr. L. REv. 238; (1930) 18 ibid. 203; (1931) 19 ibid. 337, including reviews of the doctrine of the Goodman and Koster cases.

Cases following the Koster case are: Young v. Pacific Elec. Ry. (1929) 208 Cal. 568, 283 Pac. 61 (must stop, look and listen where view is obscured); Stephenson v. Northwestern Pac. R. R. (1930) 208 Cal. 749, 284 Pac. 913 (same); Gundry v. Atchison, etc., Ry. (1930) 104 Cal. App. 753, 286 Pac. 718 (plaintiff cannot go ahead blindly, however, where wigwags are not in operation and train is in sight).

The following cases approve of the rule of the Koster case but dispense with the requirements of that rule under the circumstances indicated: Sheets v. Southern Pac. Co. (1931) 212 Cal. 509, 299 Pac. 71; (1934) 88 Cal. Dec. 185, 35 P. (2d) 121 (wigwag signal present but not working and brakeman leaving the crossing so as to indicate apparent safety); Hoffman v. Southern Pac. Co. (1929) 101 Cal. App. 218, 281 Pac. 681 (need not stop when it is foggy); Robbins v. Southern Pac. Co. (1929) 102 Cal. App. 744, 283 Pac. 850 (flagman stationed at crossing did not give any signal); Ogburn v. Atchison, etc., Ry. (1930) 110 Cal. App. 587, 294 Pac. 491

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114 23 CALIFORNIA LAW REVIEW

italicized language quoted above from the Koster case, it might be said that the situation under consideration would not come within the Cali- fornia rule. But the reply to this is that the California law would have required the plaintiff here to alight from his truck before crossing the switch track. If that be the law, the principal case must be taken to be contra in not requiring such action. In view of the impracticability of alighting and going forward, however, the principal case might well be followed if a similar situation is presented to the California courts.

A. B. A.

(wigwag signal installed, but not in operation); Lindsey v. Pacific Elec. Ry. (1931) 111 Cal. App. 482, 296 Pac. 131 (work train following immediately behind regular passenger train); Wessling v. Southern Pac. Co. (1931) 116 Cal. App. 447, 3 P. (2d) 22 (flagman on duty, but not signalling); see Vilhauer v. Pacific Elec. Ry. (1931) 118 Cal. App. 240, 4 P. (2d) 960 (party should look both ways where wigwag is in operation and two trains coming from opposite directions are in sight).

WORKMEN'S COMPENSATION ACT: DENIAL OF BENEFIT OF ACT TO INDIGENT WORKER.-The plaintiff, being unemployed, had applied to a county welfare board for work to aid him in supporting his family. He was given a rating entitling him to a certain amount of groceries and other necessaries per month. Later, in response to a "work order" from the board, he went to work for the City of Monrovia on a storm drain ditch. He worked eight hours per day and received a definite hourly wage. It appeared from the evidence before the Industrial Accident Commission that this wage was paid by the welfare board, which de- creased the grocery ration by the amount so earned, and that the foreman employed by the city had the right to discharge the plaintiff, control the manner of his work, and, in fact, treat him exactly as any other employee. It was while engaged in this work that the plaintiff was injured. Held, the plaintiff was not entitled to compensation under the Workmen's Com- pensation Act.-

The basis of the decision in the instant case was that the employer- employee relationship necessary for recovery under the Act did not exist. A number of recent decisions in other jurisdictions involving injuries incurred on various types of "work projects" sponsored by relief or- ganizations have reached the same result.2 In contrast, the English cases, which are mostly of an earlier date, have reached a contrary conclusion

1 McBurney v. Industrial Accident Comm. (Feb. 23, 1934) 220 Cal. 124, 30 P. (2d) 414, followed in Hartford Accident Indemnity Co. v. Department of In- dustrial Relations (July 10, 1934) 78 Cal. App. Dec. 198, 34 P. (2d) 826. A recent amendment to section 8 of the California Workmen's Compensation Act now ex- cludes from the provisions of the section persons who "perform services in return for aid or sustenance only, received from any religious, charitable or relief organiza- tion." Cal. Stats. 1933, p. 2613.

2 In re Moore (Ind. App. 1933) 187 N. E. 219; Vaivida v. City of Grand Rapids (1933) 264 Mich. 204, 249 N. W. 826; Thurston County Chap., Am. Nat. Red Cross v. Department of Labor (1932) 166 Wash. 488, 7 P. (2d) 577; Basham v. County Court of Kanawha County (W. Va. 1933) 171 S. E. 893; Note (1934) 19 IOWA L. REV. 450; (1933) 47 HARV. L. REV. 362; (1933) 82 U. OF PA. L. REV. 185; (1933) 20 VA. L. REV. 235.

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