Davis v. Boggs

• Decision Date: 05 July 1921
• Docket Number: Civil 1837
• Citation: 199 P. 116,22 Ariz. 497
• Parties: JAMES C. DAVIS, as Agent Under Section 206, Transportation Act of 1920, JOHN B. GANDY and LAWRENCE A. GAMOTIS, Appellants, v. WM. E. BOGGS, Administrator of the Estate of JOHN S. WILLIAMS, Deceased, Appellee
• Court: Arizona Supreme Court

199 P. 116

22 Ariz. 497

JAMES C. DAVIS, as Agent Under Section 206, Transportation Act of 1920, JOHN B. GANDY and LAWRENCE A. GAMOTIS, Appellants, v. WM. E. BOGGS, Administrator of the Estate of JOHN S. WILLIAMS, Deceased, Appellee

Civil No. 1837

Supreme Court of Arizona

July 5, 1921

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Affirmed.

Mr. F M. Hartman, for Appellants.

Messrs Flanigan & Murry, for Appellee.

OPINION

BAKER, J.

Error is assigned to the denial of the defendant's motion for an instructed verdict in its favor. John S Williams, plaintiff's intestate, was struck and killed by the engine of the defendant's passenger train, on the evening of May 5, 1918, about 8:24 P. M., as he was crossing the railroad track, going north, at a certain highway crossing within the limits of the incorporated town of Casa Grande. The train was approaching and entering the town, coming from the east, and was proceeding in a westerly direction on a slight down grade. The deceased was driving an Overland automobile. His wife and three children were with him in the machine at the time. They were returning from a short pleasure trip. They were all killed. The fireman on the engine testified that he first saw the automobile and its occupants "about somewhere around 50 feet from the crossing; not a soul was looking toward me." He estimated the automobile was traveling five or six miles per hour. He at once warned the engineer, who threw on the full emergency brakes, but it was too late to stop the train and avoid the accident. No claim is made that there is room for the application of the last clear chance doctrine. The engineer of the train, whose duty it was to be on the lookout ahead said he did not see the automobile until it was about to go upon the crossing. The automobile had passed along the road which ran almost parallel with the railroad track and about 150 feet therefrom. The road gradually turned toward the crossing at a point about fifty feet therefrom. The highway and crossing had long been used by the public. In fact, the defendant had recognized it as a public crossing by maintaining a sign there indicating a railroad crossing. The negligence alleged in the complaint is that the defendant was operating the train at a dangerous and excessive rate of speed, and that it failed to give adequate signals or warnings of the approach of the train to the crossing.

The primary question in the case is: Was the defendant railroad company, or its employees, guilty of negligence, which was the proximate cause of the accident? Was there evidence justifying the finding of such negligence? The contention of the plaintiff was, and is, that the defendant was negligent in running its train under the circumstances and conditions known to it, at an excessive rate of speed, and that it failed to give adequate signals or warnings of its approach. Upon each one of these points there is a sharp conflict in the evidence. Quite a number of witnesses were introduced by both parties, as to whether the train gave signals of warning as it approached the crossing, and the speed of the train at the time, with the usual result, some witnesses testifying one way, and some the other. The defendant well knew of the existence of the highway crossing where the accident happened and was bound to apprehend that travelers on the highway might be there about to cross or in the act of crossing as its train approached. Under such circumstances the law imposed upon the railroad company the duty or obligation to run its train at a reasonable rate of speed as it approached the crossing, giving reasonable signals of its approach so that such travelers might keep off the track if approaching it. We understand this to be the established rule of law. 33 Cyc. 922; 2 Thompson, Commentaries on the Law of Negligence, par. 1552; 22 R.C.L., pp. 987-989; Baltimore & Ohio R.R. Co. v. Griffith, 159 U.S. 603-608, 609, 40 L.Ed. 274, 16 S.Ct. 105; Continental Improvement Co. v. Stead, 95 U.S. 161-169, 24 L.Ed. 403; Texas & Pacific Ry. Co. v. Gentry, 163 U.S. 353, 41 L.Ed. 186, 16 S.Ct. 1104; Delaware, Lackawanna etc. R.R. v. Converse, 139 U.S. 469-472, 35 L.Ed. 213, 11 S.Ct. 569 (see, also, Rose's U.S. Notes).

Mr. Justice BRADLEY, in Continental Improvement Co. v. Stead, supra, said:

"If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. . . . On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. . . ."

Mr. Justice BRADLEY further said:

"The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises."

The evidence for the plaintiff, though in conflict with the evidence for the defendant upon the point, tends to show that at the time of the accident the wind was blowing briskly away from the automobile and against the approaching train. The air was filled with dust tending to obscure the vision. The direction of the wind was known, or ought to have been known, to the engineer of the approaching locomotive. The atmospheric conditions were known, or ought to have been known, to him. Under these circumstances the defendant could not rely wholly on the noise of its train as an adequate warning, nor on the mere ringing of the bell or sounding of the whistle, because the wind might carry these sounds away from Mr. Williams. Neither could the engineer reasonably assume that Mr. Williams would see the train in time to avoid the collision, because his vision might be obstructed by the dust which filled the air. The speed of the train was therefore critical, and it was the duty of the engineer to so control it as not to render unavailing the warning of the bell and whistle, if any was given.

The witnesses for the plaintiff placed the speed of the train at the time of the accident at from forty to fifty miles per hour. Witnesses for the defendant placed the speed at from fifteen to twenty-five miles per hour. It was for the jury to settle the conflict. Perhaps upon no other subject will there be found a greater variance by honest witnesses testifying as to the speed of a moving train. The value of testimony on such a point depends largely on the intelligence of the witness, his experience in such matters, his opportunity for seeing and observing, and whether or not his attention was called at the time to the speed of the train. The physical facts attending the accident afford some evidence of the high rate of speed at which the train was going. The automobile, weighing about 2,500 or 2,600 pounds, was picked up by the engine and projected a distance of about seventy-four feet through the air before touching the ground again. Mr. Williams was hurled about 110 feet, his wife ninety-four and one-half feet, and the children about 100 feet. The engine drawing the train proceeded a distance of about 1,000 feet after striking the automobile before it stopped, although the engineer threw on the full emergency brakes just before or at the time of the accident. These facts were for the consideration of the jury in determining the speed of the train and to some extent corroborated the evidence of the plaintiff as to the speed.

So the testimony is in serious conflict as to the giving of signals by the train on its approach to the crossing. Witnesses for the defendant testified that the whistle was blown on approaching the crossing and the bell was rung. Many of defendant's witnesses, not all, were in the employment of the defendant. Their interest, if any, was for the consideration of the jury. Witnesses for the plaintiff paying attention testified that no whistle was sounded and no bell was rung. They do not seem to have had any interest in the result. It was for the jury to settle this conflict. True, the evidence upon the point on the part of the plaintiff was in some respects negative in character, but it was admissible and its weight and value was for the jury. Upon the point it was said in the case of Menard v. Boston & Maine R.R., 150 Mass. 386, 23 N.E. 214:

"Ordinarily all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. But attending circumstances may be shown which make the statement strong affirmative evidence. It may appear that all the attention of which the witness was capable was concentrated on the effort to ascertain whether the bell was rung, and his failure to hear it could only have been because it made no sound. A witness may be in any conceivable attitude of attention or inattention, which will give his evidence value, or leave it with little or...