California Civil Jury Instructions (CACI)

806. Comparative Fault—Duty to Approach Crossing With Care

A driver approaching a railroad crossing is required to use reasonable care to discover whether a train is approaching. The amount of care that is reasonable will depend on the circumstances. A railroad track is itself a warning of danger. If the driver’s view of approaching trains is blocked, he or she must use greater care than when the view is clear.

If a bell or signal has been placed to warn drivers of danger, a driver is not required to use as much care as when there are no such warnings. However, even if the warning devices are not activated, a driver must use reasonable care in looking and listening for approaching trains.

New September 2003; Revised December 2009

Directions for Use

For an instruction regarding the prima facie speed limits set by Vehicle Code section 22352, see CACI No. 707, Speed Limit. For an instruction on the duty of care of a passenger, see CACI No. 711, The Passenger’s Duty of Care for Own Safety. For instructions on negligence per se, see CACI Nos. 418 to 421.

Sources and Authority

  • Vehicle Code section 22451 provides:

    (a) The driver of any vehicle or pedestrian approaching a railroad or rail transit grade crossing shall stop not less than 15 feet from the nearest rail and shall not proceed until he or she can do so safely, whenever the following conditions exist:

    (1) A clearly visible electric or mechanical signal device or a flagman gives warning of the approach or passage of a train or car.

    (2) An approaching train or car is plainly visible or is emitting an audible signal and, by reason of its speed or nearness, is an immediate hazard.

    (b) No driver or pedestrian shall proceed through, around, or under any railroad or rail transit crossing gate while the gate is closed.

    (c) Whenever a railroad or rail transit crossing is equipped with an automated enforcement system, a notice of a violation of this section is subject to the procedures provided in Section 40518.

  • Vehicle Code section 22352(a)(1) provides that the prima facie speed limit is 15 miles per hour under the following circumstances: “(A) When traversing a railway grade crossing, if during the last 100 feet of the approach to the crossing the driver does not have a clear and unobstructed view of the crossing and of any traffic on the railway for a distance of 400 feet in both directions along the railway. This subdivision does not apply in the case of any railway grade crossing where a human flagman is on duty or a clearly visible electrical or mechanical railway crossing signal device is installed but does not then indicate the immediate approach of a railway train or car, and (B) When traversing any intersection of highways if during the last 100 feet of the driver’s approach to the intersection the driver does not have a clear and unobstructed view of the intersection and of any traffic upon all of the highways entering the intersection for a distance of 100 feet along all those highways, except at an intersection protected by stop signs or yield right-of-way signs or controlled by official traffic control signals.”
  • “[T]hat the driver’s view is somewhat obstructed does not make him contributorily negligent as a matter of law; whether his failure to stop, the place from which he looks and the character and extent of the obstruction to his view are such that a reasonably prudent person would not have so conducted himself are questions for the jury in determining whether he was guilty of contributory negligence.” (Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 139 [96 Cal.Rptr. 356].)
  • “A railroad track is itself a warning of danger and a driver intending to cross must avail himself of every opportunity to look and listen; if there are obstructions to the view, he is required to take greater care.” (Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 488 [36 Cal.Rptr. 689], internal citation omitted.)
  • “A railroad company will not be permitted to encourage persons to relax their vigil concerning the dangers that lurk in railroad crossings by assuring them, through the erection of safety devices, that the danger has been removed or minimized, and, at the same time, to hold them to the same degree of care as would be required if those devices had not been provided.” (Will v. Southern Pacific Co. (1941) 18 Cal.2d 468, 474 [116 P.2d 44], internal citation omitted.)
  • “[A] driver may not cross tracks in reliance upon the safety appliances installed by the railroad with complete disregard for his own safety and recover damages for injuries sustained by reason of his own failure to use reasonable care.” (Will, supra, 18 Cal.2d at p. 475.)
  • “Violation of the railroad’s statutory duty to sound bell and whistle at a highway crossing does not absolve a driver from his failure to look and listen and, if necessitated by circumstances such as obstructed vision, even to stop.” (Wilkinson, supra, 224 Cal.App.2d at p. 489.)
  • “It is settled that a railroad may not encourage persons traveling on highways to rely on safety devices and then hold them to the same degree of care as if the devices were not present.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d 866, 871 [180 P.2d 896].)
  • “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.” (Spendlove v. Pacific Electric Ry. Co. (1947) 30 Cal.2d 632, 634 [184 P.2d 873], internal citations omitted.)
  • An instruction that a driver must stop, look, and listen when his or her view is obstructed was held prejudicially erroneous in Anello v. Southern Pacific Co. (1959) 174 Cal.App.2d 317, 322 [344 P.2d 843].

Secondary Sources

California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.10–12.12

2 Levy et al., California Torts, Ch. 23, Carriers, § 23.27 (Matthew Bender)

42 California Forms of Pleading and Practice, Ch. 485, Railroads § 485.67 (Matthew Bender)