Arizona Eastern R. Co. v. Cox

• Decision Date: 04 March 1925
• Docket Number: Civil 2221
• Citation: 233 P. 1102,27 Ariz. 469
• Parties: ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. J. J. COX, Appellee
• Court: Arizona Supreme Court

233 P. 1102

27 Ariz. 469

ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. J. J. COX, Appellee

Civil No. 2221

Supreme Court of Arizona

March 4, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. C. Struckmeyer, Judge. Affirmed.

Messrs Baker & Whitney, for Appellant.

Messrs Kibbey, Bennett, Gust & Smith and Mr. A. Y. Moore, for Appellee.

OPINION

LOCKWOOD, J.

This is an action brought by J. J. Cox, hereinafter called the plaintiff, against Arizona Eastern Railroad Company, hereinafter called the defendant, for damages for certain injuries to plaintiff and his automobile, caused, it is alleged, by the negligence of the defendant. Plaintiff was driving an automobile across the track of defendant at a regular road crossing, some six miles east of Phoenix, when a collision occurred between the auto and a train of defendant whereby plaintiff was injured and his automobile demolished.

Plaintiff alleges four general acts of negligence on the part of defendant: (1) Failure to keep the crossing in repair; (2) failure to keep the right of way clear from vegetation, which obstructed the view; (3) excessive speed of the train; and (4) failure to give proper signals of the approach of the train.

Defendant's answer is a general denial and an affirmative allegation (1) that plaintiff drove on the track at a high rate of speed without stopping, looking, or listening to discover if a train was approaching; and (2) that, knowing of the approach of the train, he negligently tried to cross the track in advance thereof, concluding that plaintiff's negligence was "the cause of, or contributed to, the accident."

The first alleged act of negligence by the defendant was taken from the jury by the trial court, and the second was so limited that for all practical purposes it was merged in the third. The case went to the jury, therefore, with excessive speed and failure to give proper signals as the only issue of negligence by the defendant for consideration.

A verdict was returned in favor of plaintiff in the sum of $2,000, and, after the usual motion for new trial, which was denied, defendant appealed from the judgment and from the order denying a new trial.

There are 14 assignments of error which we will discuss in such manner as seems advisable. The first 3 refer to the refusal of the trial court to allow defendant to show the usual speed of the train or defendant to show the usual speed of the train or defendant to show the usual speed of the train or defendant to show the usual speed of the train or that required by defendant's rules; it being a regular freight train. We find no error on this. Such evidence, if admitted at all, is only allowed when offered by plaintiff as an admission against interest by defendant. When offered by the latter it would be only a self-serving act or declaration. Chicago etc. R. Co. v. Eaton, 194 Ill. 441, 88 Am. St. Rep. 161, 62 N.E. 784.

Assignment No. 4 brings up the question of what special danger signals if any, are required to be given by a railroad company at a road crossing. Defendant argues that, while the instruction given by the trial court in the case at bar was approved by this court in Davis v. Boggs, 22 Ariz. 497, 199 P. 116, yet that case is in conflict with Morenci Southern R. Co. v. Monsour, 21 Ariz. 148, 185 P. 938, and the principle laid down in the latter decision is the correct rule of law. At the time the Monsour case was decided section 397 of the Penal Code was not called to our attention and the instruction complained of therein was held to be bad...