# Daggett v. Atchison, Topeka & Santa Fe Railway Co. > California Supreme Court · June 21, 1957 · 48 Cal. 2d 655 URL: https://www.frixlaw.com/law-library/cases/9633888 ## Case - **Full name:** JOHN S. DAGGETT, Respondent; PAUL R. SMITH Et Al., Plaintiffs and Appellants, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (A Corporation) Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** June 21, 1957 - **Citations:** 48 Cal. 2d 655; 313 P.2d 557; 64 A.L.R. 2d 1283; 1957 Cal. LEXIS 218 - **Precedential status:** Published - **Opinion:** Dissent by Schauer - **Judges:** Schauer - **Cited by:** 71 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633888 ## Opinion text SCHAUER, J., Dissenting. It is my view that it was prejudicial error to bring before the jury the fact that after the accident defendant railroad company reduced its speed limitation from 90 to 50 miles an hour at the intersection in Solano Beach where the railroad tracks crossed Plaza Street and where the accident occurred. The attempt to defend such an error as being merely the presentation of impeaching evidence appears to me to be without support in the record. To the contrary, the record affirmatively shows that at no time did the witness, Benton, testify that the limitation for the crossing remained at 90 miles an hour at the time of trial. His testimony was clearly to the effect that the general limitation for the entire fourth district—i.e., the area from Fullerton to San Diego—was 90 miles both at the time of the accident and at the time of trial, and he had further made clear that there were other limitations calling for lesser speeds at various smaller areas within the district. Moreover, any confusion as to speeds, times, and districts or areas appears from the record to have been invited and brought about by counsel for plaintiffs, who then seized upon such alleged confusion as an excuse to get before the jury otherwise inadmissible evidence of a change in the speed limitation after the accident. The following excerpts from the examination of Benton by counsel for plaintiffs, who had called him as a witness under section 2055 of the Code of Civil Procedure, will so demonstrate (all italics have been added): “Q. [By counsel for plaintiff] What was [at the time of the accident] that crossing posted for as far as the railroad was concerned ? A. 90 miles an hour. . . . *668 “Q. Now, with reference to whether you were early or late, were you late on that run, on that day? A. We were. We were late. . . . “Q. And where was the place to the Los Angeles side of Solano Beach where you had last attempted to pick up some time ? A. The speed restriction down at the district is 90 miles per hour, with the exception of where there is curve restrictions or restrictions otherwise. . . . “Q. Well, how fast did you usually go across that intersection in Solano Beach ? A. Between 80—between 80 and 90 miles per hour. . . . “Q. But across this intersection your speed varies [note present tense used by counsel for plaintiff] between 80 and 90 miles an hour; right? A. Yes, sir. . . . “Q. Could you go as fast as 90 miles an hour around this curve that comes into Solano Beach or is [note the present tense] that restricted to less? A. That is 90 miles an hour. “Q. And do I understand that you could go 90 miles an hour all the way from Los Angeles to San Diego? A. No, sir, because there is restrictions, curve restrictions and other forms of restrictions. “Q. How about that curve from Cardiff into the place of the accident; isn’t [note present tense] that curve restricted to 85? A. That's a 90 mile an hour curve. . . . “Q. . . . Now, you have driven these diesels similar to the one you were driving on that day for some time, haven’t you? A. Yes, sir. “Q. And in driving those diesels, have you gone over 90 miles an hour with them ? ... A. I have. Those diesels are a hundred-mile-an-hour diesel, but that particular district is 90 mile restriction down there. That’s known as the fourth district. . . . “Q. What does fourth district mean; can you tell us? A. Well, that’s the district from one station to the other. ‘1Q. That has nothing to do with the type of speed, does it ? A. No. “Q. Merely nomenclature of the area, merely geographically a description or appellation of the area, what it is called; is that right ? A. What the company, what particular restriction they put on that particular district, why [the reason why] I don’t know. “Q. Is [note present tense employed by counsel for plaintiff] that put on the whole district from Los Angeles all the way to San Diego ? A. That just runs from Fullerton to San *669 Diego, but from Los Angeles to Fullerton is a portion of the third district. “Q. And then you have [note present tense] to go slower in that area? A. That’s right. ‘ ‘ Q. What speed do you go [note present tense] in the area between Fullerton and Los Angeles? ... A. The speed restriction on all districts in the Santa Fe Los Angeles Division is 90 miles an hour. “Q. How about between Fullerton and Los Angeles? A. That is 90 miles an hour, too. “Q. So there is no more restriction there than there is down here? A. Not at this time. I don’t recall whether—it was a hundred on all districts but the third and the fourth districts it was less, but it is the same all over now, with the exception of the third district. That is 80. “Q. You are not speaking of what it is now, are you? A. No. It is 90 now on the first, second, and fourth districts. “Q. Well, Mr. Benton, the restriction now is 50 miles an hour, isn’t it? “Mr. Nielsen [Counsel for defendants] : I will object to that, your Honor, on the ground that has no materiality in the case. “The Court: I don’t know what district you refer to. “Mr. Belli [Counsel for plaintiffs] : He is referring to the fourth. He says that the restriction in the fourth district now is 90 miles an hour. We are prepared to show that the restriction in this district at this crossing now, rather than being 90 miles an hour, is 50 miles an hour. “Mr. Nielsen : Just a moment, your Honor. Let’s take this up outside the presence of the jury. ... I cite the statement of counsel as misconduct in attempting to bring before the jury a totally immaterial issue. “The Court: Counsel is simply stating his theory of the ease, what he expects to prove. Proceed, sir. . “Mr. Belli: Q. Mr. Benton, you say that the speeds in these areas then and now are 90 miles an hour? “Mr. Nielsen: I will object to that- ‘ ‘ The Court : That is compound. Then and now. “Mr. Belli : Q. You have told us that the speed in the area right now is 90 miles an hour. “Mr. Knowlton [Counsel for defendants]: Yonr Honor, I object to that question as being immaterial. The only critical factor there is the speed at the time of this accident. *670 ‘ ‘ The Court : I thought—now, if you mean the entire area from Los Angeles to San Diego- “Mr. Belli : First'that and then at Plaza Street. “The Court: Well, I don’t know yet. You say first and then Plaza Street. I don’t know whether you mean there at Solano Beach at the intersection in question or whether you mean an entire area between Los Angeles and San Diego. It is vague and indefinite to me, sir. “Mr. Belli : May I withdraw that and put it this way, your Honor ? “Q. Mr. Benton, is it your testimony that the speed area at this Plaza Street now is 90 miles an hour? “Mr. Knowlton : I object to that question, your Honor, on the grounds it is immaterial to any issue in this case. “The Court: Objection overruled. You may answer. ‘1Q. The speed now at the Plaza area. A. 50 miles an hour. “Mr. Belli: Q. It is 50 miles now? A. Yes, sir. “Q. Do you know when that was changed to 50 miles an hour? “Mr. Knowlton: The same objection, your Honor. “The Court: Objection sustained. “Mr. Belli : Q. At the time of the accident, the speed at the Plaza crossing was 90 miles an hour? “Mr. Knowlton : Object to that question, your Honor, on the grounds it has been asked and answered four times. “The Court: Objection sustained.” From the above-quoted portion of the record it is apparent that counsel for plaintiffs, by swinging back and forth between past tense and present tense, and by discussing speed restrictions without specific indication of whether he referred to restrictions within entire railroad districts or to restrictions at a smaller area within a district (such as at the Plaza Street crossing here involved), succeeded in confusing not only Benton, the witness, but also the court itself. Counsel then seized upon the confusion which he himself had engendered, to not only bring before the jury the fact that the restriction at the Plaza Street crossing had been changed to 50 miles, but to emphasize that the change had taken place subsequent to the accident. The admission of such improper evidence could not, and did not, tend to impeach the witness, who at no time had testified that the Plaza Street intersection speed had remained at 90 miles an hour up to the time of trial; on the contrary, the 'witness had clearly stated that the overall restriction in the fourth district (i.e., from *671 Fullerton to San Diego) remained at 90 miles, but he had also several times referred to “curve restrictions and other forms of restrictions” within districts—references which were plainly understood by plaintiff's counsel, who himself likewise referred to such lesser restrictions. Inasmuch as the issue of negligence on the part of defendants was close, it appears that the error of admitting such evidence of changed conditions was prejudicial. As stated in the majority opinion, the jury impliedly found that the deceased mother of the children, who was driving the automobile in which they were riding when they met their death, was guilty of contributory negligence. That automobile was estimated to have been traveling at a speed of from 10 to 15 miles an hour at the Plaza Street intersection when the accident occurred. The accident took place shortly before midday, and the weather was clear. Four disinterested witnesses testified that the automatic wigwag was in operation prior to and at the time of the collision, and that the train was whistling as it approached.' The engineer, Benton, testified that the automatic bell on the locomotive had been ringing continuously from Oceanside (some 15 miles north of Solano Beach), and that an emergency brake application was made some 100 feet prior to the point of impact in response to the fireman’s warning of the approaching automobile. The speed tape sealed within the locomotive placed its speed at between 85 and 86 miles an hour at the time the emergency brake application was made. Both the engineer and the fireman testified further that the train air horn was blown for the Plaza Street crossing from a point at least 1,000 feet north of the crossing. Further, plaintiff Daggett testified that both he and his deceased wife had become familiar with the crossing prior to the accident, as well as the operation of the trains and protective devices. In view of the above related evidence, the prejudicial effect of the erroneous admission of testimony concerning the reduction in the speed limitation at the subject crossing following the accident appears clear. I would reverse the judgment in favor of plaintiff John S. Daggett. Spence, J., and McComb, J., concurred. The petition of defendants and appellants for a rehearing was denied July 16, 1957. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633888. Public record. Not legal advice.