Terranova v. Southern Pacific Transp. Co., CV-87-0385-PR

• Decision Date: 01 September 1988
• Docket Number: No. CV-87-0385-PR,CV-87-0385-PR
• Citation: 158 Ariz. 125,761 P.2d 1029
• Parties: Elizabeth Jo TERRANOVA, Plaintiff/Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 1029

761 P.2d 1029

158 Ariz. 125

Elizabeth Jo TERRANOVA, Plaintiff/Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant/Appellee.

No. CV-87-0385-PR.

Supreme Court of Arizona, In Banc.

Sept. 1, 1988.

Treon, Strick, Lucia & Aguirre by Richard T. Treon, Arthur G. Newman, Jr., Raymond M. Norris, JoJene E. Mills, Phoenix, for plaintiff/appellant.

Tower, Byrne & Beaugureau by David L. Beaugureau, Anthony J. Hancock, Amy Schwartz, Phoenix, for defendant/appellee.

KLEINSCHMIDT, Judge. ^*

The plaintiff was injured when she drove into the side of a freight train that was standing across a city street. The trial court granted summary judgment against the plaintiff, holding that the only duty the railroad owed was to warn her that the crossing was blocked. The Court of Appeals, Division 2, affirmed. We vacate the opinion of the court of appeals and reverse the order of the trial court granting summary judgment. We hold that giving an adequate warning that a crossing is blocked will not, under every circumstance, discharge the railroad from liability. Instead, the railroad must act as a reasonably prudent person would act under the particular circumstances of each case. Under the facts of this case, a trier of fact could find the railroad did not meet this standard because there was evidence that the railroad needlessly blocked the crossing and that it could have foreseen that, even when warnings are given, blocked crossings result in accidents.

The plaintiff, Elizabeth Terranova, was driving south on 48th Street in Phoenix at 5:00 o'clock on a Sunday morning. It was dark. A Southern Pacific freight train had stopped with its last few cars blocking 48th Street. Although warning lights and bells There was also evidence that the train was needlessly blocking the street. The engineer testified that switching operations were in progress and that he had ample room to move the train forward so that the 48th Street crossing would be clear. There was further evidence that to save costs, Southern Pacific had decided not to use a nearby switchyard, although use of the switchyard obviated blocking city streets.

[158 Ariz. 127] were operating and nothing obstructed her view of the crossing, the plaintiff collided with the side of the train. There was evidence to suggest that the plaintiff's vehicle had experienced sudden and total brake failure.

The plaintiff proffered an expert witness to prove that warnings notwithstanding, a blocked crossing is more dangerous to motorists than is an unblocked crossing. She also presented statistics for the year 1980 that showed that in this country 540 motorists collided with trains standing at crossings in the dark although flashing lights and bells were working.

THE DUTY OF CARE

The court of appeals relied on "a clear line of Arizona authority" to conclude that the only duty a railroad owes to the traveling public when it blocks a crossing is the duty to provide an adequate warning. It cited four cases for this proposition. Doty v. Southern Pac., 59 Ariz. 449, 129 P.2d 991 (1942); Cope v. Southern Pac., 66 Ariz. 197, 185 P.2d 772 (1947); Atchison T. & S.F. Ry. v. Renfroe, 77 Ariz. 28, 266 P.2d 745 (1954); and Golfinos v. Southern Pac., 86 Ariz. 315, 345 P.2d 780 (1959).

We have a preliminary observation about the cases the court of appeals relied on. In all four of them either the primary or the exclusive focus of attention was on an assessment of the evidence relating to the adequacy of the warnings given. Thus, while the Doty line of cases clearly states the principle for which the railroad cites those cases, in none of them was the court forced to come to grips with the question this case presents. Further, in Doty, upon which Renfroe and Golfinos both rely, the plaintiff conceded that the railroad's sole duty was to give an adequate warning. In Cope, the plaintiff's evidence of a failure to warn and of negligent design of the crossing was so weak that the court concluded that a directed verdict was mandatory.

It is not necessary to rely on the distinctions between the Doty line of cases and this case, however, because those decisions were impliedly overruled by the decision of this court in DeElena v. Southern Pac., 121 Ariz. 563, 592 P.2d 759 (1979). In DeElena, the plaintiff's decedent was killed when she was struck by a train while riding her adult tricycle through a grade crossing. The crossing was marked with pavement markers, a reflectorized warning sign, and a crossbuck on a pole on which were mounted a bell and two flashing red lights. The train had been sounding its horn intermittently as it approached the crossing and the double headlights of the engine were on high beam. The deceased rode directly onto the track in the face of the oncoming train. A jury found against the plaintiff and in favor of the railroad.

The plaintiff's theory was that the railroad was guilty of negligence, indeed, wanton negligence, in failing to provide the crossing with automatic gates. This court was called upon to consider, among other things, whether the trial court erred in refusing to admit certain studies and reports relating to accidents at railroad crossings which would have supported the plaintiff's argument that there should have been an automatic gate at the crossing. In ruling, this court clearly set forth the standard that governs the duty of a railroad with respect to grade crossings:

Because of the appellee's [the railroad's] repeated insistence, both here and in the court below, that its sole duty is to warn travelers on the highway, it is appropriate to reiterate the statement this Court made in 1956 in Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827:

'It is axiomatic that a railroad company owes to travelers on the highway the affirmative duty of due care in the maintenance and safeguarding of its crossings and in the operation of its * * *

[158 Ariz. 128] trains thereon. What constitutes such due care is measured in each instance by the facts of the particular situation.

* * *

* * * The common law standard of conduct applicable to a railroad company as to all persons in order to escape liability for injuries of another is to attain the status of a reasonably prudent person under the particular circumstances.' 80 Ariz. at 58-59, 292 P.2d at 832-33.

Not only must the railroad give reasonable warning of the crossing and the approach of a train, Atchison Topeka & Santa Fe Ry. Co. v. Renfroe, 77 Ariz. 28, 266 P.2d 745 (1954), but it must take precautions commensurate with the danger involved at the crossing to avoid injury to the traveling public. See Peri v. Los Angeles Junction Ry., 22 Cal.2d 111, 137 P.2d 441 (1943). Where, in a congested area, a crossing is obstructed and is the site of an accident:

' * * * it may not be enough for the railroad to protect its crossing with the standard crossbuck, to operate its train within the speed limit, and to blow the whistle and ring the bell. The jury is still permitted to determine whether the railroad exercised reasonable care and caution under the circumstances and conditions existing at the time of the accident.' Seaboard Coast Line Railroad Co. v. Buchman, 358 So.2d 836, 839-40 (Fla.App.1978).

Hence, whether a railroad is negligent in a particular manner, such as in failing to provide automatic crossing gates, is a question of fact for the jury.

DeElena, 121 Ariz. at 566, 592 P.2d at 762.

DeElena is directly on point. In it, the plaintiff squarely claimed negligence of a type other than a failure to warn. The railroad insisted that its duty was discharged when it provided adequate warning. The court squarely rejected the railroad's argument. The trier of fact in this case is as much entitled to consider whether the freight cars should have been sitting needlessly on the crossing as the trier of fact in DeElena was entitled to consider whether an automatic gate was necessary at a particular crossing.

The railroad seeks to distinguish DeElena with the observation that it is an "approaching train" case as opposed to a "blocked crossing" case like Doty. It argues that in an "approaching train" case the inquiry cannot be limited to the adequacy of warnings because such questions as whether the train could have stopped in time to avoid the accident are relevant. It develops the distinction further by arguing that once a train is standing on a crossing there is nothing the railroad can do to avoid the accident except give warnings.

There is a leap in the logic of the railroad's argument. What it ignores is the fact that if the train had not been standing on the crossing the accident would never have occurred. Whether there is a reason for the train to be standing on the crossing is a circumstance which the trier of fact can consider in deciding whether the railroad breached its duty to act in a reasonably prudent manner.

At least one other decision recognizes this precise point. In McLaughlin v. Chicago, M. St. P. & P. Ry., 31 Wis.2d 378, 143 N.W.2d 32 (1966), the plaintiff was injured when the car in which he was riding struck a freight train that had been left blocking a crossing while the train crew went to dinner. The railroad did not present a reason why the train could not have been moved off the crossing. The accident occurred at night and there were no warning devices at the crossing. While the lack of warning devices distinguishes McLaughlin from the case before us, it is a distinction which has no meaning in this case. The Supreme Court of Wisconsin specifically said that needless blocking of the crossing was a factor that the trier of fact could consider in deciding whether or not the railroad was negligent. It stated:

In determining whether employees of the railroad were negligent in leaving them [the boxcars] there, the utility of such act in the operation of the railroad must be balanced against such risk. Where ordinary and reasonably...