Baker v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 18 February 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 11 Ariz.App. 387,464 P.2d 974
• Parties: Edith Jane BAKER, as surviving wife of Chesley Ray Baker, deceased, on behalf of herself and Becky Ray Baker and Chesley Ray Baker, Jr., surviving minor children of Chesley Ray Baker, deceased, Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellees. 916.
• Court: Arizona Court of Appeals

Page 974

464 P.2d 974

11 Ariz.App. 387

Edith Jane BAKER, as surviving wife of Chesley Ray Baker, deceased, on behalf of herself and Becky Ray Baker and Chesley Ray Baker, Jr., surviving minor children of Chesley Ray Baker, deceased, Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellees.

No. 1 CA-CIV 916.

Court of Appeals of Arizona, Division 1.

Feb. 18, 1970.

Rehearing Denied March 26, 1970.

Review Denied April 21, 1970.

Moore, Romley, Kaplan, Robbins & Green, by Craig R. Kepner, Phoenix, for appellants.

Fennemore, Craig, von Ammon & Udall, by Linwood Perkins, Jr., Phoenix, for appellees.

HATHAWAY, Judge.

This case arises out of a collision at a railroad crossing in the City of Flagstaff, Arizona. The plaintiff appeals from a jury verdict and judgment rendered in favor of the defendant railway company.

The first contention raised is that the trial court erred in refusing to admit into evidence a photograph taken at night which purportedly depicted the train's approach to the crossing.

The trial court is vested with considerable discretion in passing on the admission of photographs. Humphrey v. Atchison, Topeka and Sante Fe Railway Company, 50 Ariz. 167, 70 P.2d 319 (1937). 'The basic test for admission is whether the trial court believes that the picture might reasonably aid the jury in understanding the testimony or passing upon the issues.' Udall, Arizona Law of Evidence § 132, p. 278.

Because of its very nature--a nighttime photograph seeking to depict the approach of a train from a background of highway lights--the evidence is conflicting as to whether the photograph was a reasonably faithful representation of what Mr. Baker saw some twenty months earlier. The photographer, Mr. Hayes, testified that the photograph did not depict what the eye would see and that photographs may distort greatly, especially nighttime photographs.

However, even if we concede that a proper foundation was laid showing the photograph to be a reasonably faithful representation of the scene, we do not find the trial court abused his discretion in determining that the picture would not aid the jury in passing upon the issues. United Verde Extension Mining Co. v. Jordan, 14 F.2d 304 (9th Cir. 1926), certiorari denied 273 U.S. 734, 47 S.Ct. 243, 71 L.Ed. 865. The bottom half of the photograph is covered by a large glare caused from the camera's flash unit. The top half shows a series of generally indistinguishable lights. We do not believe this will aid the jury in passing upon the issues, and consequently find no abuse of discretion in refusing to admit the photograph into evidence.

A further contention raised is that the trial court also erred in admitting a daytime photograph. This photograph was offered to show a trailer court in relation to the railroad crossing and was admitted for that limited purpose. The plaintiff concedes this picture accurately portrayed what it was intended to show. Several persons who testified lived in the trailer park and this photograph was obviously an aid to the jury in understanding their testimony. The trial court did not commit an abuse of discretion in admitting this photograph into evidence.

The plaintiff next alleges it was error for the trial court to give Defendant's Instruction No. 9, which stated:

'Another test of proximate cause recognized by our law may be helpful to you: was the negligent act of the party under consideration a material element or a substantial factor in producing the injury? An act or omission cannot be a proximate cause if it contributes only slightly or possibly to the result, for a proximate cause is one which is a material element or a substantial factor in causing the injury.'

This instruction was given without any objection being raised by the plaintiff. Although in McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968), handled by the same law firm representing appellant here, our Supreme Court held a nearly identical instruction was 'prejudicially erroneous', we believe a timely objection is necessary to preserve the matter for review. Rule 51(a), A.R.C.P., 16 A.R.S. states in part that 'No party may assign as error the giving or the failure to give an instruction unless he objects thereto * * *.' The instruction does not deprive either party of a constitutional right, Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962), nor does it undercut the foundation of the action. Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390 (1969).

The doctrine of fundamental error in civil cases should be applied sparingly. Ortega v. State, 6 Ariz.App. 356, 432 P.2d 904 (1967). The plaintiff cannot now raise this issue for the...