Marini

This is an appeal by plaintiff below from a judgment of nonsuit in an action for damages for personal injuries sustained by him as the result of a collision between his automobile and a Southern Pacific electric train at the Fruitvale Avenue crossing near East 14th Street in Oakland, Alameda County, California.

It appears that for many years the railroad company had maintained at the crossing a signal tower, gates, and signal bells, but on the particular occasion of this accident the tower man was telephoning and forgot to lower the gates and sound the bells upon approach of the train. His negligence is admitted. It further appears that for nine or ten years past appellant had driven over this crossing many times daily and had learned to depend upon the signals and gates. The railroad right of way was seventy feet in width and the territory level. The accident occurred on a dry, clear day. Appellant contends that his view of the approaching train was obstructed by something, although he does not know what it was. Before crossing the tracks he stopped the automobile to shift into intermediate gear and states that he did not proceed until he had both looked and listened for danger.…