Bains

In this wrongful death, railroad crossing case plaintiffs appeal from a judgment in favor, of the defendants entered upon a jury verdict. Although several contentions are advanced, plaintiffs candidly concede that the primary and pivotal issue is the refusal of the trial court to submit the issue of alleged willful misconduct to the jury.

It is, of course, axiomatic that a party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory (4 Witkin, Cal. Procedure (2d ed.) Trial, § 192, p. 3012. It is also well established that in determining whether element (2) exists in a given case, the reviewing court must consider the evidence in the light most favorable to the party requesting the instruction.

It is now settled that “Three essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to…