Alires v. Southern Pac. Co.

• Decision Date: 20 February 1963
• Docket Number: No. 6763,6763
• Parties: Cecilia B. ALIRES, Administriatrix of the Estates of David Alires, Steve Atencio, Juan C. Alires, Clara Alires, Bobby Alires, Juan A. Alires, Victor Alires, Sofie Alires and Michael Alires; and Guardian of the Estate of Crucita Alires, a minor, Appeallant, v. SOUTHERN PACIFIC COMPANY, a corporation, Carl W. De Priest, and Belton E. Hodges, Appellees.
• Court: Arizona Supreme Court

Page 913

378 P.2d 913

93 Ariz. 97

Cecilia B. ALIRES, Administriatrix of the Estates of David Alires, Steve Atencio, Juan C. Alires, Clara Alires, Bobby Alires, Juan A. Alires, Victor Alires, Sofie Alires and Michael Alires; and Guardian of the Estate of Crucita Alires, a minor, Appeallant, v. SOUTHERN PACIFIC COMPANY, a corporation, Carl W. De Priest, and Belton E. Hodges, Appellees.

No. 6763.

Supreme Court of Arizona, In Banc.

Feb. 20, 1963.

Rehearing Denied March 26, 1963.

Moore, Romley, Killingsworth & Kaplan, Phoenix, for appellant.

Evans, Kitchel & Jenckes and Ralph J. Lester, Phoenix, for appellees.

STRUCKMEYER, Justice.

This action is by Cecilia B. Alires as administratrix of the estates of nine deceased relatives and guardian of the estate of Crucita Alires, a minor. She appeals to this Court from a judgment entered upon jury verdicts in favor of the Southern Pacific Company, a Delaware corporation, and Carl W. De Priest, engineer and Belton E. Hodges, fireman, employees of defendant company.

On December 16th, 1956, at approximately 11:50 P.M. a 1937 Chevrolet automobile driven by one John Massey collided with the engine of the Southern Pacific Company's Golden State passenger train at the crossing of defendant's tracks and Thirty-fifth Avenue, a through boulevard in the City of Phoenix. Twelve of the thirteen occupants of the automobile were killed, the only survivor being Crucita Alires, an 18 months old child.

Plaintiff complained that the individual defendants operated the Golden State in a wanton, reckless and negligent manner and that defendant Southern Pacific Coumpany wantonly, recklessly and negligently failed to provide adequate protection or warning for members of the public traveling on Thirty-fifth Avenue. Defendants denied negligence and affirmatively alleged that the negligence of the driver and adult passengers in the automobile either caused or contributed to the collision.

The crossing at which the accident occurred was within the incorporated limits of the City of Phoenix, and was heavily traveled, one car on the average crossing every 15 seconds. The Reynolds Aluminum Plant bordered both the Southern Pacific Tracks and Thirty-fifth Avenue and employed approximately 1,500 persons. Around midight, during change of shift, traffic was particularly heavy. The train at its pervious stop, Ynma, Arizona, was about one hour and forty minutes late. It was being operated at a speed of 79 miles an hour at the crossing. The Thirty-fifth Avenue Crossing was indicated by the customary wooden crossarn and a standard highway sign set 135 feet north of the crossing.

The Massey automobile was observed being driven recklessly prior to the accident. It struck the train on the left side at the rear of the first engine. Althouth the car was 'smashed to pieces and nearly disintegrated,' the train personnel were unaware of the accident and the train continued to the Union Station in downtown Phoenix. During the course of the evening before the accident Massey and the male members of the Alires family were observed drinking beer. Blood taken from the Massey body analyzed an alcoholic content of .23 per cent. ¹ There were no eye witnesses to the accident and the evidence does not afford any certain clue as to why the Massey vehicle was traveling south on Thirty-fifth Avenue at the Southern Pacific Crossing at the time of the collision.

Plaintiff presents many assignments of error some of which raise matters so clearly and manifestly prejudicial as to require that a new trial be granted.

Defendants' requested instruction #4 is palpably erroneous and prejudicial. By statute:

'A. No person shall drive a vehicle when it is so loaded, or when there are in the front seat such number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver's control over the driving mechanism of the vehicle.

'B. No passenger in a vehicle shall ride in such position as to interfere with the driver's view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle.' A.R.S. § 28-893.

Subsection A of the staute imposes a duty on the operator of a motor vehicle in three respects: (1) Not to drive when his vehicle is so loaded as to obstruct his view; (2) Not to drive when his vehicle is so loaded as to interfere with his control; (3) Not to drive when there are more than three people in the front seat and thereby his view is obstructed or his control interfered with. A driver is not prohibited from driving with three or more persons in the front seat if neither his view is obstructed nor his control interfered with.

Subsection B inposes a duty on a passenger not to obstruct the driver's view or interfere with his control. It does not forbid a passenger riding if the driver's view is obstructed or his control interefered with by another peron. Notwithstanding, the lower court after stating the contents of the statute instructed the jury in this manner:

'* * * Therefore, if you find that the automobile in this case was driven when it was so loaded, or when the front seat had such a number of persons exceeding three, that the view of the driver was obstructed to the front or the sides of the automobile, or was so loaded as to interfere with the driver's control over the driving mechanism of the automobile, I instruct you that all the adults in the automoble are negligent as a matter of law, and if you find that such negligence was one of the factors which contributed to bring about the collision, there can be no recovery on account of the deaths of side adults.' (Emphasis supplied.)

The instruction, therefore, erroneously directed the jurors to find all the adult passengers as a matter of law guilty of negligence if the driver violated the staute, or if any one passenger interfered with the driver's view or control of the vehicle. ² A reasonable prudent person might refuse to ride with a driver violating this statute but he is not negligent as a matter of law if he does not personally interfere with the driver's control or view. He would be negligent only because from all the facts and circumstances a jury might find that he failed to exercise ordinary care for his own safety. ³

The instruction was prejudicially misleading far beyond its erroneous contents as a statement of the law governing the case. In Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325, we reversed on the giving of an instruction which permitted the jury to speculate as to the facts, saying:

'* * * There having been no testimony indicating defective brakes, the reading of this statute to the jury was misleading and might have induced them to believe that such state of facts in the opinion of the court was possible under the evidence and could be considered by them. We consider the giving of this portion of the instruction to have been prejudicial error. * * *' Butane Corporation v. Kirby, supra, 66 Ariz. at 281, 187 P.2d at 332.

We also quoted and emphasized our holding in Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452, that:

"* * * It is not sufficient that the facts are such that it might have existed. It must appear affirmatively that it did. * * *" Butane Corporation v. Kirby, supra, 66 Ariz. at 282, 187 P.2d at 332.

Here, there were eight adults and five minors, three of whom were small children riding as passengers in the Massey automobile. There was no evidence whatsoever to indicate where in the automobile the various passengers were riding. ⁴ The instruction permitted the jury to speculate; (1) as to whether the driver's view was in fact obstructed to the front or sides and, (2) whether the automobile was so loaded as to interfere with the driver's control and, (3) whether all of any one of the passengers interfered with his control or vision. Under the circumstances of this case where no adult passenger survived and consequently there is no explanation as to how or why the accident happened, the instruction did more than permit, it invited, speculation. The mere submission constituted a direction by the court to the jury that there was a state of facts to which the instruction applied--fact from which negligence as a matter of law could be found. ⁵

The error of the court below was grossly compounded by the giving of defendants' requested instruction #15 reading:

'You are instructed that although a passenger in the automobile is not required to assume the same responsibility for its operation as the driver, he cannot utterly disregard plain warnings of imminent danager and fail to warn the driver. It is the duty of a passenger in an automobile, where he knows or ought to know that the same is about to cross a railroad track to abserve whether trains are approaching. If you find by a preponderance of the evidence that the deceased adult passengers failed in their duty in this respect, and that such filure proximately caused or contributed to cause the collision, there can be no recovery on account of said deaths.' ⁶ (Emphasis phasis supplied.)

Here again the jury could draw no conclusion unless it resorted to speculation. Among other things it could speculate that the adult passengers knew or ought to have known of the railroad crossing and (1) failed to observe whether trains were approaching or (2) if observing failed to warn the driver thereof and (3) that such failures proximately caused the collision. ⁷

The court instructed the jury that none of the children 'can be found to have been contributorily negligent' and further that its verdict must be in their favor if 'the negligence of the defendants [if any] proximately caused or proximately contributed to cause the injury.' Defendants argue from this instruction that by returning verdicts in favor of the defendants the jury found the sole, proximate cause of the accident to be the driver's negligence and that the defendants were not negligent or their...