LEONARD ROY SPENDLOVE, Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Respondent; OLEDA HARRISON, Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Respondent, 30 Cal. 2d 632

GIBSON, C. J. Plaintiffs were injured when the automobile in which they were riding was struck by an electric car operated by defendant. The actions were consolidated for trial, and the appeal is taken from judgments of nonsuit. The accident occurred in the afternoon of a clear day at a crossing where a public street running east and west intersected defendant’s private right of way. There were four sets of tracks on the right of way; tracks one and two on the east carried northbound traffic, and tracks three and four to the west were used for southbound traffic.

A wigwag signal was maintained at the crossing to warn vehicles of approaching trains. The automobile was traveling west, and when it reached the right of way the wigwag was operating and a southbound car was standing on track four. The driver stopped to allow the southbound car to pass. At this point he could see 300 to 400 feet northward, but there was a trolley pole with a switch box on it directly opposite the driver which partially obstructed the view in that direction.

When the wigwag stopped operating, the driver looked to the north and to the south and saw no approaching trains, and he listened for but did not hear any whistles or bells. He then started to cross the right of way at 5 miles per hour, and when he reached the first tracks he looked to the south. He looked ahead to the west and noted that the wigwag was not operating. The automobile traveled about 35 feet before reaching track three, where the collision occurred, and while moving this distance the driver’s view to the north was unobstructed.

When the automobile was approximately 5 feet from track three he looked to the north and then for the first time saw a southbound car on that track 25 to 30 feet away from the point of collision. It was traveling about 40 miles per hour and sounded no warning as it approached the intersection. The evidence, viewed in the light most favorable to plaintiffs, is clearly sufficient to support a conclusion by the jury that defendant was negligent, in operating its car at an excessive speed and in failing to sound a warning.

It is not claimed that defendant was negligent with respect to the failure of the wigwag to operate, and we need not determine this question. Defendant’s sole contention on appeal in support of the judgments is that the conduct of the driver of the automobile showed contributory negligence as a matter of law. Plaintiff Spendlove was the owner of the automobile which was being driven by plaintiff Harrison’s 19-year-old son, who had the permission of both plaintiffs to drive, and any negligence on the driver’s part would be imputed to plaintiffs. (Milgate v. Wraith, 19 Cal.2d 297, 300 [121 P.2d 10] ; Veh.

Code, §§ 352(b), 402(a).) When a flagman or mechanical warning device has been provided at a railroad crossing, the driver of an automobile is thereby encouraged to relax his vigilance, and, in using other means to discover whether there is danger of approaching trains, he is not required to exercise the same quantum of care as would otherwise be necessary. (Startup v. Pacific Electric Ry. Co., 29 Cal.2d 866, 871 [180 P.2d 896] ; Toschi v. Christian, 24 Cal.2d 354, 360 [149 P.2d 848] ; Will v. Southern Pacific Co., 18 Cal.2d 468, 474 [116 P.2d 44] ; Sheets v.

Southern Pacific Co., 212 Cal. 509, 513 [299 P. 71] ; Gregg v. Western Pac. R. R. Co., 193 Cal. 212, 222 [223 P. 553].) In the Startup case we held that it was error for the court to instruct the jury that the driver of an automobile was negligent as a matter of law where it appeared that he stopped at a railroad crossing, waited for two trains to pass and a wigwag signal to stop operating, and then, without again looking, started to cross four sets of tracks and was struck by a train which was on the third set of tracks and had sounded no warning.

In the present case, a southbound car, referred to in the testimony as the “Watts local,” was standing at the intersection. The wigwag was operating and the driver stopped the automobile and “waited for the Watts local to go by.” The driver could not see the wigwag while the car was crossing in front of him, but he noticed that “as the rear of the Watts car cleared the intersection, the wigwag came to rest and the bell stopped ringing.” He did not start into the right of way until the cessation of the wigwag indicated that it was safe for him to proceed across the tracks.

The driver was asked, “Now, after starting across, after the wigwag had stopped and you started across, you looked west again, did the wigwag start again?” He answered, “No, it didn’t.” It could reasonably be inferred that the driver stopped in response to the warning given by the wigwag, that he relied upon the wigwag to indicate when it was safe to proceed before starting, and while proceeding across the intersection he relied upon it to give warning of approaching trains.

To hold otherwise would do violence to the elementary rule that on appeal from a judgment of nonsuit we must view the evidence in the light most favorable to plaintiff, drawing all reasonable inferences in his favor and disregarding all conflicting or contradictory evidence. The driver did not start until “the wigwag came to rest and the bell stopped ringing,” and the fact that he also looked before he started to cross the tracks, does not negative the inference of reliance on the wigwag.

In looking, he may have acted automatically from force of habit and looked less carefully because of reliance on the warning device. When he started he looked straight ahead, and while crossing the right of way he observed that the wigwag did not start again. The cessation of the wigwag was tantamount to an “all clear” signal, a sign that there was no imminent danger from oncoming trains, and since such danger was in fact impending, the wigwag by ceasing to function and failing to resume operation acted as a trap.

In considering the right of the driver to rely on the wigwag, it is, of course, immaterial whether the failure of the warning device to operate was due to defendant’s negligence. The case of Koster v. Southern Pac. Co., 207 Cal. 753 [279 P. 788], is not in point. There the driver of an automobile was killed at an unguarded crossing. Although a flagman was stationed at the crossing during certain hours of the day, he was not present when the accident occurred, and decedent knew that he was not customarily on duty at that hour.

The court held that he was guilty of contributory negligence inasmuch as the physical facts demonstrated that, had he stopped, looked and listened, he would have been warned at a safe distance of the approach of the train. When the driver in the Koster case approached the intersection, he was not invited to proceed by the cessation of a warning signal given by a warning device or a flagman.

If, however, the flagman had been present, giving a warning of danger, and the driver had stopped and waited until the flagman by ceasing to signal had indicated that it was safe to proceed, it would have been a question for the jury whether, under the circumstances, he was guilty of negligence. (See Startup v. Pacific Elec. Ry. Co., 29 Cal.2d 866 [180 P.2d 896].) The case of Jones v. Southern Pac. Co., 34 Cal.App. 629 [168 P. 586], is distinguishable for the same reasons. Heroux v. Atchison, T. & S. F. Ry., 28 Cal.App.2d 401 [82 P.2d 620], does not involve a guarded crossing. In the case of Guyer v.

Pacific Electric Ry. Co., 24 Cal.App.2d 499 [75 P.2d 550], the driver crossed in defiance of an operating signal. Whether the driver in the present ease could have seen the car from the point at which he stopped, and whether by the exercise of reasonable care he should have seen it, were questions for the jury. His failure to see the car may have been due to partial obstruction of his view by the pole and box, or the car may not then have come within his area of vision. It is also possible, as we have seen, that because of his reliance on the wigwag, he looked less carefully than he otherwise .would have.

It was likewise a question for the jury whether the driver was guilty of negligence in failing to look to the north after starting to cross the right of way until the automobile was only 5 feet from track three. The driver’s view was unobstructed as the automobile entered the right of way, and, if he looked to the north then, he could have seen the train approaching. Instead he looked straight ahead. He observed that the wigwag was not operating, and just as.he started to look to the north his mother “shrieked.” He then saw the car for the first time.

In the Startup case the driver did not look to the right or left before or after he started into the intersection, and we held that since the wigwag had ceased to give the danger signal it became a question for the jury whether the driver was guilty of negligence in failing to look. (29 Cal.2d 866.) Here the jury could have found that the driver relaxed his vigilance in reliance upon the wigwag, and we cannot say as a matter of law that he was negligent in failing to look to the north sooner than he did.

He took' more precautions for his safety and that of his passengers than did the driver in the Startup case, and we held there that “where it is shown that a [driver] has exercised some care, the question whether or not the care actually exercised was due and sufficient will always be a matter for determination by a jury.” (29 Cal.2d 866, 871; Koch v. Southern Cal. Ry. Co., 148 Cal. 677, 680 [84 P. 176, 113 Am.St.Rep. 332, 7 Ann.Cas. 795, 4 L.R.A. N.S. 521].) It was also a question for the jury whether the driver was guilty of negligence in failing to stop when he saw the approaching car.

The automobile was then approximately 5 feet from the point of collision, and the car was traveling at 40 miles an hour and was 25 or 30 feet away. The automobile was going 5 or 6 miles an hour as it crossed the intersection, and plaintiff Spendlove testified that at that speed the automobile could be stopped within 1 foot. It is argued that since the automobile was 5 feet from track three when the driver saw the car he was guilty of negligence as a matter of law in not stopping the automobile before it reached the path of the oncoming car.

The driver testified, however, that he did not have time “to do anything” after he saw the car. He said, “It hit us just about the time I saw it.” Under the circumstances we cannot say as a matter of law that the driver was guilty of contributory negligence. The judgments are reversed. Shenk, J., Carter, J., Traynor, J., and Spence, J., concurred.