Atchison, T. & S. F. R. Co. v. Hicks

• Decision Date: 07 January 1946
• Docket Number: 4730
• Citation: Atchison, T. & S. F. R. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167 (Ariz. 1946)
• Parties: ATCHISON, T. & S. F. R. CO. et al. v. HICKS
• Court: Arizona Supreme Court

165 P.2d 167

64 Ariz. 15

ATCHISON, T. & S. F. R. CO. et al. v. HICKS

No. 4730

Supreme Court of Arizona

January 7, 1946

Appeal from Superior Court, Maricopa County; Dudley W. Windes Judge.

Affirmed.

Fennemore Craig, Allen & Bledsoe, of Phoenix, for appellants.

Wilson & Wilson, of Phoenix, for appellee.

Morgan Judge.Stanford, C. J., and LaPrade, J., concurring.

OPINION

Morgan, Judge.

On April 6, 1943, during the noon hour, plaintiff was driving his automobile in a northerly direction on the public highway known as lateral 15, which at a point between Glendale and Phoenix intersects and crosses at an angle of 45 degrees defendant railway company's main line track and four parallel tracks immediately to the northeast, some of which are used for switching.In driving over the intersection, plaintiff's automobile was struck by the company's regular passenger train proceeding towards Phoenix on the main line, and he was seriously and permanently injured.

Plaintiff alleged that the proximate cause of the collision and resulting injuries was the negligence of defendants in the following particulars.Defendant Steyaert, a company brakeman engaged in switching cars at the intersection, and who had a clearer view of the main line track towards the north than plaintiff, signaled him to cross over, and plaintiff, relying upon the position of the brakeman and his ability to view the tracks, proceeded to cross.When plaintiff had reached and was driving over the main line track, the brakeman signaled him to back up.Obeying this instruction, plaintiff stopped, but before he could comply with the latter signal his automobile was struck by the on-coming passenger train which was then being operated by defendant Pentland, the engineer, at a high and excessive rate of speed, in excess of 60 miles per hour, "which speed was excessive by reason of the obstruction at said intersection and the traffic and use of said intersection at said time and place."

Plaintiff's claim of negligence is bottomed upon the concurring effects of the high and excessive speed of the train, the failure of defendant Pentland to slow the train, and the negligence of defendant Steyaert in signaling plaintiff to proceed into the intersection, and then when he had reached a place of danger to stop him from proceeding further.

Due to the effects of the injury, plaintiff has no recollection of the collision nor of anything that occurred immediately preceding or following the injury.The testimony was conflicting and unsatisfactory.However, there are some facts about which there is no controversy.At about the time plaintiff was driving up the incline to cross over the railroad tracks, Steyaert was engaged with a switching crew in moving cars on the most northeasterly track.These cars were moved in such a manner as to leave the crossing unobstructed.Steyaert had a better view of the main line track than plaintiff could have had if the latter was still on the incline which led up to the tracks.Plaintiff was a truck driver by occupation, and an experienced driver.

The train operated by Pentland, regularly due in Phoenix in the morning, running on a revised schedule three minutes late, had passed Alhambra station, and was proceeding through an area congested by five tracks, a large number of railroad refrigerator cars, and storage and loading structures along the right of way.The range of vision of the engineer was not given, but he did not see plaintiff's car until he was about 600 feet from the point where the highway crosses the railroad.It is a much used highway, being the main artery of traffic to the largest factory operating in the vicinity.Rain was falling at the time.When the engineer saw plaintiff's automobile on the track, he immediately applied his brakes, this at a distance of about 500 feet from the point of collision.In addition to the engine and tender, there were seven coaches in the train, each 80 feet in length.It was not brought to a complete stop until the rear was approximately three car lengths beyond the crossing.The evidence discloses that from the time the engineer saw plaintiff's car and applied the brakes, the train traveled approximately a quarter of a mile before it was brought to a stop.

Plaintiff's case rests principally upon the testimony of the witness Hasse, as corroborated by the testimony of defendant Pentland and the fireman of Pentland's engine.Hasse's testimony taken in the light most favorable to plaintiff, discloses that just after the crossing had been opened by the switching crew, and at the time Steyaert dropped off the cars at the crossing, he saw plaintiff's car pulling up the incline.He saw the brakeman give a signal for the car to come ahead, and when the car had approximately straddled the main line track, he saw the brakeman signal the car to go back; that it stopped on the track, but before it could be backed off it was struck by the train.He also testified that the train "was coming pretty fast".Hasse's testimony is not too clear but he did say that when the first come-on signal was given, plaintiff"was coming right up the incline.He was coming up the incline and just as he was ready to come up on the tracks he gave him the signal * * * to come ahead."

The engineer testified that he first saw the car when his train was about 600 feet away, and that it was driving onto the track at that time.We quote:

"A.I saw this car driving on the track just as we got to the crossing.

"Q.Avenue J, is that correct, is that when you saw Sam drive on the track?A.Yes."

Avenue J is approximately 450 feet north of the point of impact.The fireman Queen testified:

"Q.When did you see the car before the accident?A.Well, I saw it just at the time we passed Avenue J and about the same time that the engineer went into action, you know, the last whistle and also the emergency application of air.

"Q.Where was the car when you saw it?A.Well, it looked to me as if it had just got up on the track because he made a little lurch just as I saw it.

"Q.As far as you know, the car was still moving when you saw it?A.Apparently it just came to a stop as I saw it, because I saw it give a little lurch."

The testimony of defendant Steyaert tended to show that plaintiff drove his car up onto the main line track and stopped astride this track until the switching crew had cleared the northeasterly parallel track.He testified that when he dropped off the car being switched, plaintiff's car was standing on the main line track, that he heard the train coming and immediately signaled plaintiff to move his car back off the track.He made no come-on signal.

Motions for directed verdict were denied by the trial court.The jury found a verdict for plaintiff.Defendants' motion for new trial was denied, and they have brought this appeal.

Defendants raise two fundamental questions upon which they base error: (1) That the judgment is wholly unsupported by evidence of negligence as charged; (2) that the verdict and judgment do not rest upon any evidence but leave the whole controversy in the realm of surmise and speculation.

It is obvious that if either one of the foregoing contentions is good, the case should be reversed.On the other hand, if the evidence disclosed probative facts from which negligence and responsibility on the part of defendants may be inferred, then the case is one for the jury.If there is any substantial evidence to support the verdict and judgment, they must, under the law which has been frequently applied by this court, be upheld.

We have made a careful examination of all the authorities cited by defendants.The facts and issues here present questions which have neither been directly considered nor decided by the cases cited.It is true that speed alone, in the absence of a statute or regulation restricting the speed of trains at the place of accident, is not negligence.Canion v. Southern Pac. Co.,52 Ariz. 245, 80 P.2d 397, 400.In the instant case, no such statute or regulation is involved.We have repeatedly indicated, however, that speed, taking into consideration other circumstances, may be considered as negligence.In Canion v. Southern Pac. Co., supra, the following appears: "* * * We are clearly of the opinion that the admitted speed of the train at the time and under the circumstances was not, as a matter of law, negligence unless it were shown affirmatively that there were some circumstances existing at the time which should have caused the engineer to slacken his speed.There was no evidence of this nature."

The general law on the subject of speed at crossings as negligence is well stated in 44 Am.Jur. 753, section 512, Railroads: "While the speed of trains at crossings is not, in and of itself, negligence per se, when considered with other circumstances it may constitute negligence, either as a matter of law, or as such evidence of negligence as will support such a finding by the jury. * * *" This statement is in accordance with the views this court has heretofore expressed.Davis v. Boggs,22 Ariz. 497, 199 P. 116.

Here the conceded facts are that the engineer did not or could not see plaintiff's danger until the train was near the intersection; the crossing was known to be a bad one, and the view of travelers was obstructed.The evidence is that almost immediately after the engineer saw plaintiff's car he applied the air brakes; but the train was being operated at such a speed that it not only struck the automobile but drove approximately 1,000 feet beyond.The testimony is that the brakes were applied at least 400 feet north of the point of impact, and that the train did not stop until it had traversed approximately a quarter of a mile.Since the engineer did...