Akers

Plaintiffs appeal from judgment, after jury trial, in favor of all defendants.

Questions Presented

1. Instruction given.

2. Instructions refused.

3. Effect of Muskopf v. Corning Hospital Dist., 55 Cal.2d 211 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ].

Record

Plaintiffs were injured when the automobile in which they were riding was struck by a Southern Pacific train at a railroad crossing in Palo Alto, at which crossing employees of the city of Palo Alto were painting stop lines. Plaintiffs sued the Southern Pacific Company, James Goodwin, an employee of the city of Palo Alto and, under the Public Liability Act, the city of Palo Alto. No contention is made that the evidence does not support the verdict in favor of all defendants.

On the morning of the accident plaintiff E. David Akers was driving westerly along Palo Alto Avenue with his wife, plaintiff Mary, sitting beside him, intending to cross the railroad tracks. At this point the avenue is divided by a concrete dividing strip some 84 feet in length. The westbound lane is guarded at the right of way by a half gate and other signal devices installed by the Southern Pacific. The eastbound lane is unguarded by a gate on the east…