Canion v. Southern Pacific Co.

Decision Date13 June 1938
Docket NumberCivil 3987
Citation80 P.2d 397,52 Ariz. 245
PartiesR. E. CANION, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Messrs Marks & Marks, for Appellant.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellee.



R. E Canion, hereinafter called plaintiff, brought suit against Southern Pacific Company, a corporation, hereinafter called defendant, for damages to a certain truck owned by plaintiff, caused by the alleged negligence of defendant. The case was tried to a jury, and both plaintiff and defendant presented evidence and rested. Thereafter, defendant moved for an instructed verdict in its favor, which motion the court granted, and judgment was duly rendered in favor of defendant.

The only question raised by the assignments of error is whether there was sufficient evidence in the case to justify the submitting of it to the jury. The testimony taken in the strongest manner in behalf of plaintiff, as it must be taken when a motion for a directed verdict in favor of defendant is granted, shows the following facts:

Plaintiff is a general contractor, operating his trucks under a contract carrier's permit issued by the Arizona Corporation Commission. For some time before the accident, he had a contract to deliver sand and gravel to a concrete mixer approximately 150 feet south of the tracks of defendant, near a crossing some 22 miles west of Phoenix. At the point of the crossing, defendant's tracks run east and west and are intersected by an ordinary dirt road running north and south. Shortly before 11 o'clock on the evening of the 6th of March, 1936, plaintiff's son had driven a truck loaded with sand and gravel across the tracks at the crossing in safety, although he had heard the whistle of a train to the east and had observed its headlight some two miles away. In proceeding to the crossing over the dirt road this truck had raised and left behind it such a cloud of dust that the driver of a second truck, which is the subject of this suit, who was also proceeding southward to make a delivery to the mixer, was so enveloped in dust that at times he could not see more than four or five feet ahead of him. This crossing was well known to the driver of the demolished truck, as he had previously made many trips over it to and from the mixer, and he knew that he was crossing defendant's main line, on which many trains traveled both day and night. Although as he neared the crossing he was enveloped in a heavy cloud of dust, he did not stop the truck to observe whether a train was approaching, but merely slowed down. Just north of the crossing he shifted into low gear, and at the same time he saw a light which he assumed was from the truck which had just preceded him over the crossing. As he drove on the track, he heard a whistle, and looking up, saw an engine about two hundred feet east of the crossing. Seeing the certainty of a collision, he abandoned his truck on the track and leaped to safety. The train was traveling between sixty-five and seventy miles an hour at the time it struck the truck and completely demolished it. There is no question as to the foregoing facts, but we leave certain disputed matters for discussion at a later portion of this opinion.

There are six things alleged in plaintiff's complaint which he claims were responsible for the accident. They are stated by plaintiff in his brief, as follows:

"... the defendant...

"(1) Caused its train to approach the crossing at a dangerous rate of speed, to-wit: approximately sixty miles an hour.

"(2) Failed and omitted to keep its locomotive and train under proper control so that it could have stopped in time to avoid the collision.

"(3) Failed and omitted to keep a lookout for automobiles or trucks passing over said crossing.

"(4) Failed and omitted to ring the bell on said locomotive at a distance of not less than eighty rods from said crossing and up to said crossing, as required by Para. 644, R.C.A. 1928.

"(5) Failed and omitted to cause a steam whistle on said locomotive to sound at a distance of eighty rods from said crossing and up to said crossing as required by Para. 4702, R.C.A. 1928.

"(6) Failed and omitted to maintain a watchman or an automatic signal or other appliance to warn persons in motor vehicles of the approach of its locomotive or train at said crossing."

If any of these acts constitute negligence in the eyes of the law, and if there is evidence in the record which reasonably sustains a conclusion that such negligent act did occur and was the proximate cause of the destruction of the truck, the court erred in directing a verdict. Let us consider, first, which of the acts alleged to have caused the accident do, as a matter of law, constitute negligence, and, if any of them do, whether the evidence would sustain a conclusion that such act occurred.

There has been a good deal of confusion as to the general duty imposed upon one who voluntarily goes upon a railroad track. We have discussed this question in the case of Southern Pac. Co. v. Fisher, 35 Ariz. 87, 274 P. 779, and quoted approvingly the following language taken from Robison v. Oregon-Washington R. & Nav. Co., 90 Or. 490, 176 P. 594:

"'If from a place of safety on his way, the traveler in control of the vehicle in which he is riding can obtain a view of the coming train, he must look upon the course of the train from that point, and this responsibility is constant until the danger is past; that is, until he is safely across the railway track. The duty is constant because the danger is incessant. Instead of being intermittent it grows as the traveler gets near the crossing and reaches its climax only as he actually crosses the track in his passage. This obligation he owes not only to himself, but also to those on the train, whether passengers or the laborers employed in its operation. He must not allow his selfish little convenience to override this duty so well grounded in common sense.

"'All the precedents make it incumbent upon the traveler both to look and listen. Neither of them can be eliminated, without its use is practically impossible. The law does not excuse him from exercising both of them, unless there is no reasonable opportunity for that purpose. There is quite as much reason for his stopping so he can see as for stopping so he can hear, if there be any zone of safety from which he can see, and there are obstructions which prevent him from seeing a moving train without halting in that zone.'"

And in Southern Pac. Co. v. Shults, 37 Ariz. 142, 290 P. 152, we approved of the doctrine laid down by the Supreme Court of the United States in Baltimore & O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72

L.Ed. 167, 56 A.L.R. 645. That court used the following language (page 25):

"... When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly v. Delaware & H. Co., 225 U.S. 597, 603, 32 S.Ct. 783, 56 L.Ed. 1221, 1222, 44 L.R.A. (N.S.) 154, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts."

A similar situation arose in Humphrey v. Atchison T. & S.F. Ry. Co., 50 Ariz. 167, 70 P.2d 319. The court gave the following instruction (page 176):

"You are instructed that a railway track is of itself a warning. It is a place of danger. It can never be assumed that cars or trains are not approaching on a track, or that there is no danger therefrom. It is, therefore, the duty of every person who approaches a railroad track to exercise proper vigilance to ascertain and to know whether any trains or cars are approaching thereon before attempting to cross thereover. Proper vigilance requires every such person to look and listen before going upon said track or so close thereto as to be in danger."

It was urged that the rule laid down there was too rigid, and we said:

"A railroad track of itself is unquestionably a warning of danger, and it is the duty of every person who sees such a danger signal to look and listen before going on the track, and thus putting himself in what may at any time become a situation of extreme danger. This does not excuse the operators of the train from also exercising due care, nor does the instruction intimate that it does. It merely lays down the duty of those who go upon railroad tracks."

With the rule set forth in these cases as to the relative duties and rights...

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