Atchison, T. & S.F. Ry. Co. v. Parr
| Citation | 96 Ariz. 13,391 P.2d 575 |
| Decision Date | 15 April 1964 |
| Docket Number | No. 7019,7019 |
| Parties | The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellant, v. Gene PARR and Irine Parr, husband and wife, Appellees. |
| Court | Supreme Court of Arizona |
Fennemore, Craig, Allen & McClennen, Phoenix, for appellant.
Udall & Udall, Tucson, Stevenson & Babbitt, Flagstaff, for appellees.
Gene Parr brought this action against the Atchison, Topeka and Santa Fe Railway (hereafter referred to as the Santa Fe) and against its employee Douglas Wamble. Parr claims he suffered personal injuries as a result of the negligence of the Santa Fe or its employee Wamble, or both. The trial below resulted in a verdict and judgment in favor a Wamble and against Parr, but in favor of Parr and against the Santa Fe. Santa Fe appealed.
The facts are as follows: Parr, an employee of the Owl Truck and Contractors Cargo Service, suffered an injury at the Santa Fe's Glen Canyon Dam railhead, east of Flagstaff. The immediate cause of this injury was a fall from a truck. The accident occurred while Parr and other employees of Owl Truck and defendant Wamble were engaging in unloading pipe from a gondola railroad car onto the Owl Truck operated by Parr. This operation was under the supervision of Richard Stindt, the Owl Company's foreman. The pipe, which was forty feet in length and twenty inches in diameter, was moved by an electric gantry crane owned by Santa Fe and operated by Wamble. The gantry crane ran on tracks which were parallel to and outside of the tracks on which the gondola car was spotted. It spanned the area where both gondolas and trucks were located for the load transfer.
The truck which was being loaded was parked immediately adjacent to and on the north side of the gondola. The mechanics of the operation were directed by the Owl foreman Stindt. Owl employees in the gondola car would attach cables connected to the carne swivel hook to four joints of pipe. On signal from the workers in the gondola, the crane operator would raise the lift of pipe out of the car and then move it laterally to the truck. If the Owl employee on the truck was not prepared to receive it he would order the operator to stop the crane with the lift suspended between the truck and gondola car. A lift was so suspended immediately before the accident. Plaintiff Parr was crouched near the north-west corner and on top of the pipe which had been loaded onto the truck. He was nailing down an angle iron to hold the pipe. His back was to the lift of the pipe. The west end of the lift swung or rotated against his causing him to jump or fall from the truck onto the ground. The fall resulted in a fractured left heel. Parr then instituted this action for damages and the case was tried to a jury which found for the defendant Wamble, but against the defendant Santa Fe in the amount of $15,000.
The Santa Fe moved for a new trial. Parr moved for a new trial against Wamble. These motions were not ruled upon and were therefore denied by operation of law. Parr also moved for new trial against Santa Fe on the issue of damages only or alternatively for an additur of $15,000. The trial court made a minute order adding $15,000 to the verdict and ordering a new trial on the issue of damages against Santa Fe if it refused to consent to the additur. Santa Fe expressly refused to consent to this additur and the trial court's order for new trial became effective.
Parr did not appeal the verdict or judgment against him and in favor of Wamble. Accordingly, this judgment has become final and Wamble's freedom from negligence has become res judicata. Santa Fe is the only appellant.
Santa Fe first contends that the verdict against it is inconsistent with the verdict in favor of Wamble because there is no basis whatever for a finding that Santa Fe is liable except vicariously through its employee, Wamble. Santa Fe concedes that the verdict against it is consistent with the verdict for Wamble only if there is evidence in the record of its independent negligence. Therefore, we now examine the evidence and the fair inferences which may be drawn from it.
When reviewing the sufficiency of evidence to support a verdict and judgment, this Court will view the evidence in the light most favorable to the appellee. Consequently, in the instant case, we will give Parr the benefit of every favorable item of evidence and the favorable inferences which may be drawn therefrom. Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 210 (1949).
The evidence makes it clear that this giant crane was equipped with a cab from which the operator could properly control the lifting hook and at the same time look at the most important area of work (that where Parr was standing on the truck doing the loading) only by 'hanging halfway out of the cab.' In addition to the restricted visibility of the cab, the record shows that the crane was lifting an unwieldy forty-foot load of 4800 pounds in a high wind on a swivel hook which was so arranged that it could suddenly swing in any direction at any time. Wamble's testimony demonstrates why the jury could have found that he did all a reasonable man could have done under the circumstances of his employment. But it also shows why the same jury could find that Wamble's employer was negligent in putting him and Parr in such a situation:
'Q. Have you ever received a hand signal from anyone, whether the truck was loaded or empty, standing in that area of the truck: either the northwest corner or the northeast corner?
'A. No sir.
'Q. Why?
'A. You can't see them.
'Q. Can you operate the crane when you are leaning out of the window?
'A. Not very readily, no sir.
'Q. Why?
'A. Well, you are in a cramped position. It would be like leaning over a desk.
'Q. What activates this whole crane?
'A. The dead-man switch.
'Q. What is that? Tell the jury. Explain to them what that is.
'A. Well, that is a switch you have to have your foot on at all times so that you can have the power that goes through it. And as soon as you take your foot off of it, everything immediately stops. I guess that's where the expression comes from, 'dead-man.' If you fall off it, everything stope. All railroad equipment, I guess all kinds of equipment have them.
If the Santa Fe furnished equipment which permitted only limited vision to the operator thereof, so that he could not see the area where a dangerous condition might easily arise, then the jury could consider this as evidence of independent negligence on the part of the Santa Fe. There are many cases holding a motorist negligent where he has...
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