Murphy v. Atchison, Topeka & Santa Fe Railway

Plaintiff administratrix appeals from a judgment in favor of defendants entered upon a jury verdict in a wrongful death action. The decedent was killed when a passenger train operated by defendant Santa Fe collided with his truck at a grade crossing. Plaintiff advances as her sole assignment of error the refusal of the trial court to instruct the jury that her decedent was presumed to have exercised due care for his own safety. Defendants justify the refusal of the requested instruction on the basis of their contention that the testimony given by plaintiff’s witnesses was wholly irreconcilable with the presumption sought to be invoked. No other question is raised concerning the form or content of the instruction as requested.

The instant judgment was entered at the conclusion of the second trial of the case. The first trial ended with a judgment of nonsuit, which was granted upon the ground that plaintiff’s evidence established decedent’s contributory negligence as a matter of law. The nonsuit was reversed by Division One of this court in Murphy v. Atchison, Topeka & Santa Fe Ry., 139 Cal.App.2d 792 [ 294 P.2d 458 ]. Upon retrial, as we have indicated, the jury rendered a verdict…