Southern Pac. Transp. Co. v. Lueck

• Decision Date: 25 April 1975
• Docket Number: No. 11768--PR,11768--PR
• Citation: 111 Ariz. 560,535 P.2d 599
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware Corporation, Appellant, v. Melanie LUECK, in her Individual capacity and as surviving widow of William T. Lueck, Appellee.
• Court: Arizona Supreme Court

Page 599

535 P.2d 599

111 Ariz. 560

SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware Corporation, Appellant, v. Melanie LUECK, in her Individual capacity and as surviving widow of William T. Lueck, Appellee.

No. 11768--PR.

Supreme Court of Arizona, In Banc.

April 25, 1975.

Rehearing Denied June 3, 1975.

Bilby, Thompson, Shoenhair & Warnock by Harold C. Warnock, Richard M. Bilby, Tucson, for appellant.

Barber, Haralson, Giles & Moore by D. Dale Haralson, Tucson, for appellee.

The Association of Trial Lawyers of America, Arizona Branch by Robert G. Begam, Phoenix, amicus curiae.

STRUCKMEYER, Vice Chief Justice.

This is an appeal from a verdict of a jury and a judgment in an action for wrongful death at a railroad crossing. The jury in a unanimous verdict awarded $2,000,000, compensatory, and $1,080,000, punitive damages to Melanie Lueck, the surviving widow of William T. Lueck, deceased, and their two children, ages six years and 18 months. The Court of Appeals, 22 Ariz.App. 90, 523 P.2d 1327 (1974), reversed, expressing the view that the evidence was not sufficient to submit to the jury the question as to whether the deceased's contributory negligence was barred by the defendant's wanton negligence. Decision of the Court of Appeals vacated.

We think it is first appropriate to review the law relevant to a determination of wanton and willful negligence in this case. Since Southern Pacific R. R. Co. v. Svendsen, 13 Ariz. 111, 108 P. 262 (1910), wanton negligence has been a bar to the defense of contributory negligence. There, the court approved the statement:

'The doctrine that contributory negligence will defeat recovery has no application where the injury is the result of the willful, wanton, reckless conduct of defendant.' 13 Ariz. at 117, 108 P. at 264, 265.

The definition of wanton negligence as found in the Restatement of Law, Torts, was adopted in Arizona in 1945, Womack v. Preach, 63 Ariz. 390, 163 P.2d 280 (1945), and has been followed since. Conduct is wanton if a defendant intentionally does or fails to do an act, knowing or having reason to know of facts which would lead a reasonable man to realize that his conduct not only created an unreasonable risk of harm to another but involved a high degree of probability that such harm would result.

The Restatement of Law, Second, although defining wanton negligence in terms of reckless conduct, appends this informative comment:

'a. Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know, as that term is defined in § 12, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.' (Comment A to § 500, at 587, 588.)

Willful misconduct means intentional, wrongful conduct, done either with knowledge that serious injury to another probably will result or with a wanton and reckless disregard of the possible results and is essentially a question of fact. Olea v. Southern Pacific Company, 272 Cal.App.2d 261, 77 Cal.Rptr. 332 (1969).

'The usual meaning assigned to 'wilful,' 'wanton' or 'reckless,' according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.' Prosser, Torts, 4th ed., § 34, p. 185.

To determine wanton negligence, the acts of a defendant must be considered as a whole and although each of several acts standing alone might not exceed the bounds of ordinary negligence, yet taken together they may establish wanton negligence. Carley v. Meinke, 181 Neb. 648, 150 N.W.2d 256 (1967). Where the evidence discloses several acts of negligence, whether gross or wanton negligence is established is a matter for the jury. Brown v. Riner (Wyo.), 500 P.2d 524 (1972).

At about 1:00 p.m. on November 29, 1966, on a clear day, William Lueck, a 30-year-old resident of Willcox, Arizona, was fatally injured when the truck he was driving was struck by a Southern Pacific Transportation Company train at the Maley Street crossing within the corporate limits of Willcox, Arizona. Shortly before the deceased's truck entered upon the railroad crossing, the Southern Pacific's Blue Streak Manifest passed over the Maley Street crossing on the main line traveling westward. The Blue Streak Manifest was followed one and one-half to two minutes later by a work train. This latter train struck the deceased's truck.

Maley Street is a four-lane, northsouth, paved highway with cement curbs, two lanes for northbound and two for southbound traffic. Prior to the accident, deceased was driving his truck south on Maley Street loaded with 12 to 14 tons of sand and gravel at a speed of about five miles per hour. He was a resident of Willcox, familiar with the railroad crossing having used it almost daily. The crossing consisted of four tracks. It averaged a daily traffic count of 2700 to 3000 motor vehicles and an average of 32 trains in a 24-hour period. The deceased was struck on the main line, the second track from north to south. (See sketch adapted from defendant's Exhibit N.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The railroad crossing where the accident occurred was protected by all the usual railroad crossing signs. In addition to the standard crossbucks, highway and pavement markings, there were four flashing red lights, eight inches in diameter with warning bells located at the sides of the crossing and two flashing red lights on an overhead cantilever extending over the center of the inside traffic lane with warning bells and a square sign warning 'stop on red signal.' At the time of the accident, since changed, the flashing lights and warning bells were activated by trains on the switching tracks.

It is plaintiff's position that even if the warning bells and the flashing red lights had not momentarily stopped between the passage of the two trains, all the facts and circumstances then existing at the crossing tended to confuse and mislead the deceased. She points to 25 inferences which she derives from the evidence to support her claim of wanton negligence. We think, however, it is unnecessary to labor the issue to that extent. Taken in a light most favorable to upholding the jury's verdict, the facts hereinafter recited are more than sufficient to support a finding of both wanton and willful negligence.

THE EVIDENCE OF WANTON AND WILLFUL LEGLIGENCE BY THE SOUTHERN PACIFIC TRANSPORTATION COMPANY

Two hundred feet north of the point of impact is the intersection of a road parallel to the tracks, called Railroad Street, and Maley Street. From Railroad Street almost to the tracks the vision of an approaching motorist is obstructed both to the right and left as the crossing is approached from the north. On the left of a motorist is a city park in which trees obstruct the view to the east. On the right between Railroad Street and the tracks is a depot. The depot obstructs the view of a motorist looking toward the railroad siding and switching area on the right, to the west.

To the right at a distance of approximately one-fourth of a mile was a freight train at rest, waiting for the main line to clear.

The work train which struck the deceased consisted of an engine and caboose. The engine was running backward, pulling the caboose although it could have been turned at Bowie, a town approximately 24 miles to the east of Willcox. It was the conductor's responsibility and decision as to how the engine should be run. Because the engine was running in a backing position, the engineer had to rely on the fireman for information as to conditions on the north side of the railroad right of way.

The fireman saw the deceased's truck twenty seconds before the collision. He warned the engineer five times that he didn't think the deceased was going to stop, testifying:

'Q. Sir, how many times between the time you first told him, Mr. Rhoades (the engineer), you didn't think he was going to stop, and the time you actually told him to big-hole it; how many other times did you indicate that you didn't think he was going to stop?

A. To my knowledge, twice and maybe three times.

Q. So you indicated to him two to three times in addition to the first one that you didn't think Bill was going to stop; is that correct, sir?

A. To my knowledge, yes.

Q. And then at approximately the fifth time, you said he is not going to stop, big-hole it?

A. (Affirmative nod)

Q. And he did; is that correct, sir?

A. Yes, sir.'

No effort was made by either the fireman, who also had emergency brake controls at the position where he sat, or the engineer to reduce the speed of the train until just before the impact. After striking the deceased's truck, the work train traveled between 2300 and 2500 feet before it came to a stop. Because the engine of the work train was running backward, the oscillating white light on the front of the engine was pointing to the rear and was turned off. The oscillating light is a warning light designed to give a different and greater warning than the usual headlight. The single non-oscillating backing light at the rear of the engine was on.

The work train left Bowie going west from eight to ten minutes behind the Southern Pacific's Blue Streak Manifest which was traveling at the average speed of 60 miles per hour. At Willcox the work train had gained on the Blue...