Spataro

This appeal presents a factual oddity in motor vehicle-train collision cases—an implied finding that the truck driver’s recovery is not barred by contributory negligence, but that his fellow employee, who rode on the right side of the vehicle and did not touch its controls, was eontributorily negligent.

Plaintiff Weeks was the driver, and plaintiff Spataro the relief driver, of a tractor-trailer combination owned by plaintiff Sudo. A locomotive of defendant railroad, operated by *780 defendant Larragoity, struck the vehicle combination. Weeks and Spataro were injured. Weeks brought an action for his injuries. Spataro and Sudo joined in another complaint in which the former sought recovery for his injury and the latter for damage to the vehicles. The actions were consolidated and tried to a jury. Verdict and judgment were for Weeks, but against Spataro and Sudo. Each losing party appeals from the adverse portion of the judgment.

With Weeks driving and Spataro seated to his right, the tractor travelled east on First Street, Oakland, parallel to three sets of railroad tracks. The nearest tracks were occupied by a standing freight train, two to three feet to the right of the…