Cope v. Southern Pac. Co., 4929

• Decision Date: 20 October 1947
• Docket Number: 4929
• Parties: COPE et ux. v. SOUTHERN PAC. CO. et al
• Court: Arizona Supreme Court

185 P.2d 772

66 Ariz. 197

COPE et ux. v. SOUTHERN PAC. CO. et al

No. 4929

Supreme Court of Arizona

October 20, 1947

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

Judgment directing verdict for the Southern Pacific Company and James E. Smith affirmed, and judgment directing verdict for Warren Jarvis reversed, and cause as to him remanded for a new trial.

Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for appellants.

Evans Hull, Kitchell, Ryley & Jenckes and Norman S. Hull, all of Phoenix, for appellees.

LaPrade Justice. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Justice.

Appellants brought suit for the wrongful death of their eighteen-year-old daughter. The complaint among other things alleged that the Southern Pacific Company maintained and operated certain railroad tracks and lines in Maricopa County and specifically referred to its tracks across what is commonly known as Baseline Road, a public highway. In referring to the crossing where the death occurred, the specific allegations are: "* * * which crossing was negligently constructed and maintained by the said defendant, Southern Pacific Company, so that the said crossing constituted a hidden trap and a danger to persons operating automobiles crossing said track * * *."

There is this additional allegation of negligence: "* * * as the train approached and entered the said crossing, the defendant James E. Smith (engineer) negligently failed to give warning signals of the approach at the crossing."

After both sides had submitted their evidence the court granted a motion for a directed verdict in favor of defendant Southern Pacific Company. At this time the court also denied a motion that had earlier been made by plaintiffs to amend their complaint to conform to the proof on the issue of the Southern Pacific's negligence in maintaining a hidden trap, the ruling on which motion had been taken under advisement and reserved. Plaintiffs' motion for a new trial did not complain of this ruling of the court in refusing the trial amendment to the pleadings, nor has the ruling in this respect been assigned as an error in this court; hence, under our rules is not here for review. This appeal is from the judgment entered on the directed verdict and the denial of plaintiffs' motion for a new trial.

Ozell Cope, age 18 years, was killed in a collision between an automobile driven by a young man, Warren Jarvis, in which she was riding, and a freight train of defendant Southern Pacific Company, on which defendant Smith was engineer. The collision occurred at 9:45 p.m. January 9, 1942, at the railway crossing over Baseline Road two miles south of Mesa. Jarvis, Miss Cope, and Leland Watkins, all in the front seat, were driving westerly on Baseline Road, and the train was moving in a southerly direction. The automobile ran into the side of the train, and more particularly into the rear end of the 46th car and the front end of the 47th car behind the locomotive. The impact was so severe as to cause the instantaneous death of Miss Cope and Mr. Watkins, and to result in almost total destruction of the automobile.

The highway was straight and was crossed at right angles by two sets of somewhat parallel railroad tracks. The easterly tracks are designated as the Christmas Branch, and the westerly tracks, on which the train was moving, are designated as the main line. The distance between the center lines of the two sets of tracks on the north lane of the highway was 135 feet.

Jarvis had driven over the crossing in the opposite direction about one-half hour earlier in the evening, but he testified that at the time of the accident he was not aware that he was approaching the crossing, and was not looking for a crossing or a train as he approached at an admitted speed of not less than 40 miles per hour, which speed he maintained until he applied his brakes.

When Jarvis drove onto the tracks of the Christmas Branch he saw the train for the first time. He applied his foot brakes immediately and forcibly, but was unable to stop the automobile, which skidded 125 feet into the sides of the freight cars. The night was dark and somewhat cloudy; some rain may have fallen. No dust, smoke, or atmospheric condition interfered with Jarvis' vision, and his eyesight was good. The brakes on the automobile were in good condition. The headlights were on, but Jarvis could not state whether they were on bright or dim. The paved portion of the highway was 16 feet in width. The crossing was marked by two white-painted standard crossarm signs, one near the main-line track and on the south side of the highway, the other near the Christmas line and on the north side of the highway. In addition to these two standard crossarm signs there were two tall white-painted signal towers 30 feet north of the highway, one approximately five feet south of the south rail of the main line and the other about the same distance north of the north rail of the main line. The main-line tracks were 3 1/2 inches lower than the Christmas Branch tracks, and the highest point between them was five inches above the main line and six inches above the Christmas Branch. The approach to the crossing from the east was on an incline. The rise in grade from the base level of the highway to the Christmas Branch was 3 1/4 feet from a point 250 feet east of the easterly tracks (Christmas Branch). Additional facts will be stated as necessary to the full development of the opinion.

Appellants have made two assignments of error which are as follows:

Assignment of Error No. I.

The court erred in directing a verdict in favor of the defendant for the reason that where evidence was presented upon the trial which would have tended to prove that the defendant Southern Pacific Company was negligent in maintaining inadequate warning signals and maintained a hidden trap and danger to motorists using the highway; the question of whether or not the defendant was negligent in these respects became a question of fact which could be properly determined only by the jury.

Assignment of Error No. II.

The court erred in directing a verdict in favor of the defendants for the reason that the evidence presented by the plaintiffs on the question of whether or not the defendant Smith gave the required bell and whistle signals was of sufficient weight that, even in the face of defendant's evidence to the contrary, the question of whether the signals were given became a question which could be properly determined only by the jury.

These assignments are supported by some 10 propositions of law.

The fact situation here readily disposes of the second assignment of error. There is much made in the briefs as to the position this court has taken at various times upon the value of positive and negative testimony, as where the engineer testified "I blew the whistle and the bell was ringing," and other witnesses testified "I did not hear the whistle blow or the bell ring." See Maricopa & Phoenix & Salt River Valley Railroad Co. v. Dean, 7 Ariz. 104, 60 P. 871; Davis v. Boggs, 22 Ariz. 497, 199 P. 116; Illinois Bankers' Life Ass'n v. Theodore, 44 Ariz. 160, 34 P.2d 423; Canion v. Southern Pacific Co., 52 Ariz. 245, 80 P.2d 397. These cases have no application here for the reason that crossing signals from a locomotive are required by statute solely to warn travelers on the highway of the approach of the train to the crossing, Arizona Eastern R. Co. v. Cox, 27 Ariz. 469, 233 P. 1102; secs. 43-4802 and 69-116, A.C.A.1939, both amended by ch. 87, Laws 1943. There is no requirement that the signals shall be given or continued after the locomotive has passed the crossing. (Id.) The facts in this case clearly call for the application of the rule in the Cox case, supra. From the undisputed evidence, Jarvis was driving not less than 40 miles per hour as he approached the first crossing and passed over it; the train was moving at the rate of 30 miles per hour; and Jarvis hit the side of the train at a point more than one-half mile behind the locomotive. It necessarily follows that the automobile was approximately two-thirds of a mile from the crossing when the locomotive went over the crossing. Defendant Jarvis was the only witness other than the engineer to testify with reference to the sounding of the whistle or lack of it. Jarvis admitted that he was unaware that he was in the vicinity of the crossing; that he wasn't listening for a train whistle or bell; that he did not see the locomotive or its headlight as it approached or went over the crossing; and that he did not know whether or not the whistle was blown or the bell was rung. Had he been in a position to hear the whistle or bell had they been sounded, his testimony would fall into the classification of "negative testimony." There must be a predicate before negative testimony is relevant or competent. Davis v. Boggs, 22 Ariz. 497, 199 P. 116; Southern Pac. Co. v. Fisher, 35 Ariz. 87, 274 P. 779; Missouri K. & T. R. Co. v. Flowers, 187 Okl. 158, 101 P.2d 816. But where, as here, he wasn't listening for any whistle or bell and was in no position to hear them if sounded, his testimony had no probative value -- no more than if he had testified, "I didn't hear any whistle; I was in Phoenix" -- (19 miles away).

Appellants in behalf of their first assignment of error have suggested some five propositions of law. Two of them really go to the crux of the matter and are as follows:

Proposition of Law No. II.

The question of whether or not the warning signs at a railroad crossing were suitable and sufficient to protect the public using the highway over the crossing is a question for the determination of the jury.

Proposition of Law No. III.

When the...