OPINION
KOFORD, P.J.
Respondent recovered a verdict and judgment against appellant for $25,000 for personal injuries inflicted upon him by appellant’s locomotive and train when it collided with his automobile at the Matheson street crossing in the city of Healdsburg. Appellant claims upon this appeal that the conduct of the respondent was negligent, barring his recovery, despite negligence of the appellant.
The crossing is about one-fourth mile north of the depot. The train left the depot at 4:50 p.m. February 4, 1925, and proceeded north towards the said crossing, where the collision occurred a few minutes later. The railroad track crosses Matheson street curving on a large radius, the inside of the curve being to the east. About 28 feet east of the track and south of Matheson street is a large packing house extending over 200 feet along the railroad right of way and about 125 feet along Matheson street. Respondent had parked his automobile on Matheson street at the north end of this packing house near the railroad track, but where the building blocked his view of the track south towards the depot. He went inside the building upon business for about 5 or 10 minutes. Then he came out and entered his automobile alone. He said, in substance: I could see the railroad track. I looked up and down it. I did not hear any train or see anything, so I started the automobile slowly, and I looked again and there was a little grade, a little dip there (in the street), and I started slowly across the track in low gear at not over five or six miles per hour and just all of a sudden there was a flash; that’s all I saw. After looking from a point opposite the corner of the packing house I did not look any more because I had already looked. Respondent was never aware of the presence of the train until it struck him. He testified that he heard no bell, whistle, or noise. The positive testimony of witnesses that the locomotive gave several short warning blasts of the whistle immediately following the regular crossing whistle of two long and two short blasts and that the bell was constantly ringing is deserving of mention, although the plaintiff and other witnesses testified negatively, having heard no bell or whistle. The point from which respondent last looked for a train prior to the collision was about opposite the corner of the packing house, which corner was the last obstruction to a clear view down the track in the direction from which the train came. At this point his vision down the track would be greatly increased or diminished by advancing towards the track or retreating from it a few feet. He estimated that when he last looked he could see down the track about 100 feet. The permanent objects on the ground there show that, after passing the corner of the packing house, one could see down the track in excess of 400 feet. During the time the last 20 or 25 feet was traversed by respondent just prior to the collision, the engine must have been plainly visible to him if he had looked. Had he seen the danger he could have stopped in safety because traveling in low gear at a slow rate of speed in an automobile in good condition. A train at 40 miles an hour would travel not over 200 feet, while a motorist travels 25 feet at 5 miles per hour.
Counsel points to the curving track as an excuse for respondent’s failure to see, but the curve was not sharp enough to conceal the train behind the packing house if the train was close enough to reach the auotmobile at the most favorable speeds found in the testimony. The engine was visible, therefore, despite the curve in the track, even assuming the train was coming at the speed of forty miles an hour. A 14-year-old boy was the only witness who testified to such high speed. He estimated it at 30 to 40 miles per hour. None of the numerous other witnesses on this point estimated the speed of the train in excess of 14 miles per hour.
Counsel for respondent also assigns poor visibility as an excuse for failure to see the train, but the evidence does not show this. The collision occurred between 4:50 and 5 p.m. February 4, 1925, which was about one-half hour before sunset. It was a cloudy and stormy day but not raining at the time. No witness testified that it was dark. The plaintiff himself testified the light conditions were pretty good, and that by "pretty good" he meant "not dark or anything." The rough condition of the street surface where it approaches and crosses the railroad tracks is also assigned as an excuse. The respondent did not testify that his attention was diverted by the surface of the street, nor does the testimony indicate that the condition of the street was such as to require marked or more than ordinary attention.
While there are conflicts in the evidence regarding other facts, such conflicts are not upon subjects which could alter the foundation upon which appellant lays its plea of contributory negligence. There seems to be no escape from the conclusion that respondent was negligent in failing to observe the approach of the train under the circumstances. The facts are not distinguishable in principle from the cases relied upon by appellant holding such conduct to be contributory negligence as a matter of law. Griffin v. San Pedro, L.A. & S.L.R.R. Co., 170 Cal. 772, 151 P. 282, L.R.A.1916A, 842; Murray v. Southern Pacific Co., 177 Cal. 1, 169 P. 675; Eddlemon v. Southern Pacific Co., 41 Cal.App. 340, 182 P. 811; Thompson v. Southern Pacific Co., 31 Cal.App. 567, 161 P. 21; Baltimore & Ohio Ry. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645.
The authorities relied upon by respondent in which contributory negligence was held to be a question for the jury show much greater precautions taken by the one injured than in the instant case. They are: Levings v. Pacific Electric Ry. Co., 178 Cal. 231, 173 P. 87; Walker v. Southern Pacific Co., 38 Cal.App. 377, 176 P. 175; McDonald v. Southern Pacific Co., 71 Cal.App. 656, 236 P. 172; Badostain v. P. Electric Ry. Co., 83 Cal.App. 290, 256 P. 576.
For the foregoing reasons the judgment appealed from should be reversed. Two other points should be mentioned.
By the complaint the appellant was charged with negligence in failing to maintain a warning device at the crossing, and that issue went to the jury. Over objection of appellant evidence was admitted that at several other street crossings in Healdsburg such devices were maintained by the appellant. The evidence should have been excluded. What was done by the appellant at other crossings which may or may not have resembled this one was immaterial. Bailey v. New Haven & Northhampton Co., 107 Mass. 496; Lake Erie & W.R. Co. v. Johnson, 191 Ind. 479, 133 N.E. 732.
The court’s instructions upon the amount of care required of one who finds himself suddenly in great peril through no fault of his own should not have been given. There was no evidence that respondent discovered his great peril until after the collision.
The judgment is reversed.
We concur: STURTEVANT, J.; NOURSE, J.