The Court.
Miles Pepper, a young man of twenty-five years, in driving across the track of the defendant’s railroad in or near the town of Los Gatos, was killed by a passing train. Miles was never married, and the plaintiff, his father and heir at law, brought this action, alleging that his son’s death was caused by the carelessness and negligence of the defendant.
The answer denied all negligence on the part of the defendant, and alleged that the death of the deceased was caused by his own negligence.
The jury found for the plaintiff, and assessed his damages at eight thousand dollars. This appeal is from [398]*398the judgment and from an order denying defendant’s motion for a new trial.
Several exceptions were taken to evidence and to instructions given and refused, and it is further specified that the verdict is nott justified by the evidence in many particulars. The more important specifications of insufficiency of the evidence are, in substance: 1. That the evidence was insufficient to show negligence on the part of the defendant; and 2. That it does show negligence on the part of the deceased contributing proximately to the accident.
1. The complaint alleged the negligence of the defendant to consist in not giving any warning, either by ringing a bell or sounding a whistle, of the approach of the train, and in causing the train to approach the crossing at a reckless and negligent rate of speed, and in its negligence in obstructing the view of its track at said crossing.
Some of plaintiff’s witnesses testified that no bell was rung or whistle blown as a warning of the approach of the train to the crossing, nor until the danger signal was blown, when the engine was so near the crossing that it was too late to prevent the accident; others said they did not hear any -whistle or bell until the danger signal was given; whilst about an equal number of defendant’s witnesses testified that the bell was rung continuously from the time the train left the station at Los Gatos, a little more than three-fourths of a mile from the place of the accident, until the train stopped after the accident.
It is not necessary to discuss the question whether this evidence was sufficient to support a finding by the jury that the bell was not rung, inasmuch as the negligence of the defendant in not giving warning of the approach of the train to the crossing—if it did not give such warning—is not conclusive of its liability.
As to the rate of speed of the train the evidence was without conflict that it was going at the rate of thirty or thirty-five miles per hour. It cannot be said, as matter [399]*399of law, that it is negligent or dangerous to run at that speed; and there is nothing in the record to show, as matter of fact, that it was negligent, unless it can he said to be negligence to cross any public road at a speed of thirty-five miles an hour, and that is not claimed by respondent.
Nor is there any thing in the record tending to show that the defendant obstructed the view of its track at said crossing, whether negligently or otherwise.
Conceding, for the purposes of the case, that the defendant did not give the required warning of the approach of its train to the crossing, and that the omission was negligent, we think that the verdict was not justified by the evidence, for the reason that the defendant’s negligence proximately contributed to cause the accident resulting in his death.
There is not only no evidence that the deceased used any care or made any effort to ascertain whether a train was approaching, but the evidence excludes the possibility of his having used any reasonable care or caution in approaching the crossing. The fact that his view was obstructed, after he crossed University avenue, made it negligence on his part to drive at a rate of speed which not only interfered with his hearing an approaching train, but made it difficult or impossible to stop. If he could not see an approaching train because his vision was obstructed ordinary care for his own safety required him to stop in order that his hearing should not also be obstructed, and in any event to make his approach so slowly as to give him complete control of his team, and enable him to stop instantly if occasion required. ®
So far as the negligence of the deceased is concerned we see no conflict in the evidence; and it is well settled in this state and elsewhere that, if his negligence contributed proximately to the accident resulting in his death, the plaintiff cannot recover, even though the defendant negligently omitted to give the warning of the approach of the train which the law and its duty [400]*400required. (Hager v. Southern Pac. Co., 98 Cal. 309; Flemming v. Western Pac. R. R. Co., 49 Cal. 253; Glascock v. Central Pac. R. R. Co., 73 Cal. 137.)
It is said, however, that the train was running at a rate of speed faster than usual. This could not affect the question, since the deceased could not have been misled by the unusual speed of the train, unless he saw or heard the train, and undertook to cross ahead of it; and to make such attempt and fail is conclusive evidence of negligence.
Nor is the fact that the train was eight minutes late any excuse for the neglect of the deceased to take proper precautions in approaching the track. If he knew the precise time the train passed this crossing when on time he must have known that it had not passed. He crossed the track going east about fifteen minutes before the accident, which was before the train was due, and while he was on the east side he was at no time beyond sight and hearing of the train if it had passed. On the other hand, if he did not know when the train was due, it was clearly his duty, in the exercise of reasonable care and prudence for his own safety, to use all reasonable means to ascertain whether he might then cross without danger from a passing train.
It is argued by respondent that “if'his horses were frightened by the negligent blowing of the whistle, and ran before they reached the right of way,” it would not show that he did not intend to stop, look, and listen, when he reached a point where he could view the track.
This argument assumes that the blowing of the whistle "was negligence. We think it was not. The engineer, when he saw the wagon approaching behind the trees at a rapid gait, could not assume that the driver heard the train, and, under such circumstances, his duty was to attract the driver’s attention by blowing the whistle. If the deceased had stopped his team, and thus indicated that he was aware of the approaching train, and was waiting for it to pass before attempting to cross, a different question might have been presented [401]*401if the horses became frightened and unmanageable because of the sounding of the whistle.
In a similar case the supreme court of Iowa said: “When the engineer saw the team the whistle sounded twice. This, as we suppose, was the call for brakes, but counsel for the plaintiff insist that if it had not been done the collision would not have occurred. Possibly this is so, but the question is, Was the engineer negligent in thus sounding the whistle? We think not. In the first place, the engineer saw the horses close to the track, and that a collision would certainly occur unless something was done immediately to prevent it. To sound the whistle under the circumstances in the pending emergency was, we think, prudent and proper.
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The Court.
Miles Pepper, a young man of twenty-five years, in driving across the track of the defendant’s railroad in or near the town of Los Gatos, was killed by a passing train. Miles was never married, and the plaintiff, his father and heir at law, brought this action, alleging that his son’s death was caused by the carelessness and negligence of the defendant.
The answer denied all negligence on the part of the defendant, and alleged that the death of the deceased was caused by his own negligence.
The jury found for the plaintiff, and assessed his damages at eight thousand dollars. This appeal is from [398]*398the judgment and from an order denying defendant’s motion for a new trial.
Several exceptions were taken to evidence and to instructions given and refused, and it is further specified that the verdict is nott justified by the evidence in many particulars. The more important specifications of insufficiency of the evidence are, in substance: 1. That the evidence was insufficient to show negligence on the part of the defendant; and 2. That it does show negligence on the part of the deceased contributing proximately to the accident.
1. The complaint alleged the negligence of the defendant to consist in not giving any warning, either by ringing a bell or sounding a whistle, of the approach of the train, and in causing the train to approach the crossing at a reckless and negligent rate of speed, and in its negligence in obstructing the view of its track at said crossing.
Some of plaintiff’s witnesses testified that no bell was rung or whistle blown as a warning of the approach of the train to the crossing, nor until the danger signal was blown, when the engine was so near the crossing that it was too late to prevent the accident; others said they did not hear any -whistle or bell until the danger signal was given; whilst about an equal number of defendant’s witnesses testified that the bell was rung continuously from the time the train left the station at Los Gatos, a little more than three-fourths of a mile from the place of the accident, until the train stopped after the accident.
It is not necessary to discuss the question whether this evidence was sufficient to support a finding by the jury that the bell was not rung, inasmuch as the negligence of the defendant in not giving warning of the approach of the train to the crossing—if it did not give such warning—is not conclusive of its liability.
As to the rate of speed of the train the evidence was without conflict that it was going at the rate of thirty or thirty-five miles per hour. It cannot be said, as matter [399]*399of law, that it is negligent or dangerous to run at that speed; and there is nothing in the record to show, as matter of fact, that it was negligent, unless it can he said to be negligence to cross any public road at a speed of thirty-five miles an hour, and that is not claimed by respondent.
Nor is there any thing in the record tending to show that the defendant obstructed the view of its track at said crossing, whether negligently or otherwise.
Conceding, for the purposes of the case, that the defendant did not give the required warning of the approach of its train to the crossing, and that the omission was negligent, we think that the verdict was not justified by the evidence, for the reason that the defendant’s negligence proximately contributed to cause the accident resulting in his death.
There is not only no evidence that the deceased used any care or made any effort to ascertain whether a train was approaching, but the evidence excludes the possibility of his having used any reasonable care or caution in approaching the crossing. The fact that his view was obstructed, after he crossed University avenue, made it negligence on his part to drive at a rate of speed which not only interfered with his hearing an approaching train, but made it difficult or impossible to stop. If he could not see an approaching train because his vision was obstructed ordinary care for his own safety required him to stop in order that his hearing should not also be obstructed, and in any event to make his approach so slowly as to give him complete control of his team, and enable him to stop instantly if occasion required. ®
So far as the negligence of the deceased is concerned we see no conflict in the evidence; and it is well settled in this state and elsewhere that, if his negligence contributed proximately to the accident resulting in his death, the plaintiff cannot recover, even though the defendant negligently omitted to give the warning of the approach of the train which the law and its duty [400]*400required. (Hager v. Southern Pac. Co., 98 Cal. 309; Flemming v. Western Pac. R. R. Co., 49 Cal. 253; Glascock v. Central Pac. R. R. Co., 73 Cal. 137.)
It is said, however, that the train was running at a rate of speed faster than usual. This could not affect the question, since the deceased could not have been misled by the unusual speed of the train, unless he saw or heard the train, and undertook to cross ahead of it; and to make such attempt and fail is conclusive evidence of negligence.
Nor is the fact that the train was eight minutes late any excuse for the neglect of the deceased to take proper precautions in approaching the track. If he knew the precise time the train passed this crossing when on time he must have known that it had not passed. He crossed the track going east about fifteen minutes before the accident, which was before the train was due, and while he was on the east side he was at no time beyond sight and hearing of the train if it had passed. On the other hand, if he did not know when the train was due, it was clearly his duty, in the exercise of reasonable care and prudence for his own safety, to use all reasonable means to ascertain whether he might then cross without danger from a passing train.
It is argued by respondent that “if'his horses were frightened by the negligent blowing of the whistle, and ran before they reached the right of way,” it would not show that he did not intend to stop, look, and listen, when he reached a point where he could view the track.
This argument assumes that the blowing of the whistle "was negligence. We think it was not. The engineer, when he saw the wagon approaching behind the trees at a rapid gait, could not assume that the driver heard the train, and, under such circumstances, his duty was to attract the driver’s attention by blowing the whistle. If the deceased had stopped his team, and thus indicated that he was aware of the approaching train, and was waiting for it to pass before attempting to cross, a different question might have been presented [401]*401if the horses became frightened and unmanageable because of the sounding of the whistle.
In a similar case the supreme court of Iowa said: “When the engineer saw the team the whistle sounded twice. This, as we suppose, was the call for brakes, but counsel for the plaintiff insist that if it had not been done the collision would not have occurred. Possibly this is so, but the question is, Was the engineer negligent in thus sounding the whistle? We think not. In the first place, the engineer saw the horses close to the track, and that a collision would certainly occur unless something was done immediately to prevent it. To sound the whistle under the circumstances in the pending emergency was, we think, prudent and proper. There was no time for reflection. It was the usual thing to do, and, if the engineer had failed to do so, we think he possibly would have been negligent if a collision had occurred because of such failure.” (Schaefert v. Chicago etc. Ry. Co., 62 Iowa, 624.)
No exceptions were taken to the instructions given at plaintiff’s request, but, as the judgment and order must be reversed upon the ground hereinbefore considered, it is proper to notice instructions not excepted to, in view of further proceedings.
The fifth instruction given to the jury upon the point last above discussed was misleading and erroneous in two particulars: 1. That it assumes that if the deceased could not see the train, and was not aware of its approach, that he was not negligent. We have already held that, if he could not see the train because of obstructions, he was negligent in not resorting to other means reasonably within his power to ascertain whether a train was near; and 2. It assumes that in blowing the whistle the engineer was negligent.
The court instructed the jury, at defendant’s request, that the damages must be confined to the pecuniary loss suffered by the plaintiff; but afterward, upon its own motion, the court further instructed the jury “ that the measure of damages is not alone the pecuniary loss and [402]*402injury sustained by the plaintiff in tbe loss of his son, as just explained, but in assessing the damages you may, in addition, take into consideration the loss, if any, sustained by plaintiff in being deprived of the comfort, society, and protection of the deceased by reason of his death.....You are not to take into consideration sorrow, grief, or mental suffering, if any, occasioned by the death of decedent.”
This instruction is erroneous.
In Morgan v. Southern Pac. Co., 95 Cal. 510, 29 Am. St. Rep. 143, the court below, in an action brought by the mother for the death of her infant daughter, charged the jury that “ the jury is not limited by the actual pecuniary injury sustained by her by reason of the death of her child”; and it was held that the instruction was erroneous.
This question was fully discussed in that case, and it was clearly held that, in an action for damages for the death of a relative, the relations existing between the plaintiff and the deceased could only be considered in estimating the pecuniary loss. Here the jury were instructed that they were “ not limited by the actual pecuniary injury sustained by the plaintiff.” The instruction, therefore, permitted the jury to give the plaintiff more than his “ actual” pecuniary loss. What meaning the court intended to convey by the word “ actual” is not clear, but it is comprehensive enough to' include all pecuniary loss, and that in actions of this character is the limit of compensatory damages. Besides, the jury were instructed that they might “in addition”—that is, in addition to the actual pecuniary injury—“ take into consideration the loss, if any, in being deprived of the comfort, society, and protection of the deceased.” Here “ the loss” is not restricted to pecuniary loss, but, as was said in Morgan v. Southern Pac. Co., 95 Cal. 510, 29 Am. St. Rep. 143, the jury “ were given wide range to run into any wild and excessive verdict which their caprice might suggest.” It may well be doubted whether the facts of this case justi[403]*403tied any, even the most guarded, instruction in relation to compensation for the deprivation of the comfort, society, and _ protection of the deceased. The son was twenty-five years of age, and had the legal right to change his residence to a remote part of the state, or of the world, at any time he chose. He was not living with the plaintiff, though in the same town. The case was not like that of husband and wife, a relation which the law presumes would have continued until the death of the plaintiff, nor like that of parent and minor child, where the right to select the residence of the child and to retain his society during minority is given by the law.
Some other instructions are criticised by appellant, but the general discussion wre have given will sufficiently cover all other questions arising upon the instructions.
The only serious error in ruling upon the admission of evidence was corrected by the court.
The judgment and order appealed from are reversed, and the cause remanded.