DeElena v. Southern Pac. Co., 13600

Citation592 P.2d 759,121 Ariz. 563
Decision Date16 February 1979
Docket NumberNo. 13600,13600
PartiesJose DeELENA, as Personal Representative of the Estate of Antonia Mora DeElena, Deceased, for and on behalf of Jose DeElena and Pedro DeElena, the surviving children of Antonia Mora DeElena, Deceased, Appellant, v. SOUTHERN PACIFIC COMPANY, a Delaware Corporation, Southern Pacific Transportation Company, a Foreign Corporation, and Albert V. Sloper, Appellees.
CourtSupreme Court of Arizona

Thur, Preston & Hungerford by Calvin C. Thur, Scottsdale, Carl Waag, Tucson, for appellant.

Evans, Kitchel & Jenckes by F. Pendleton Gaines, III, David L. Beaugureau, Phoenix, for appellees.

STRUCKMEYER, Vice Chief Justice.

This is an appeal by Jose DeElena from a jury verdict in favor of appellees and an order denying his motion for a new trial. Jurisdiction was acquired pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S.

At about 4:30 p. m. on December 18, 1972, appellant's mother, Antonia Mora DeElena, age 51, was killed when the adult tricycle she was riding was struck by the engine of a southbound Southern Pacific Transportation Company freight train at the intersection of the railroad tracks and Broadway Road in Mesa, Arizona. Broadway Road is a four-lane, east-west paved street. The single track of the railroad roughly parallels Broadway in the area of the Mesa depot, some 1600 feet west of the crossing, then crosses MacDonald Road, a north-south street, and curves to the south approximately 1000 feet from the crossing. Thereafter, the track crosses Broadway Road in a general north-south direction. West of the crossing were double pavement markers ("RXR") and a standard circular, reflectorized warning sign at the south edge of Broadway Road. At the crossing, in the southwest quadrant approximately six feet from the curb line, there was a reflectorized crossbuck mounted on a pole, containing a bell and two round, flashing 25-watt red lights.

The train consisted of an engine, a caboose and eight cars. The crew consisted of an engineer, appellee Albert V. Sloper, a fireman, Sanford Burchett, two brakemen and a conductor. Sloper sat on the left side and Burchett sat on the right side of the engine since it was running in reverse. The other members of the crew were in the caboose which was hooked up directly behind the engine. One of the brakemen, James R. Grundy, sat in a bay window on the right side of the caboose.

As the engine entered the crossing, Burchett and Grundy saw Mrs. DeElena appear from behind the two lanes of eastbound traffic stopped at the crossing. She was traveling at a rate of speed estimated at three miles per hour. Burchett testified that he waited "a moment or two" to see if she was going to stop and when it appeared she would just keep going, he yelled at Sloper to apply the emergency brakes. Sloper did so immediately; however, Mrs. DeElena was struck by the engine and killed. The speed of the train was estimated at 15 to 20 miles per hour just prior to the application of the emergency brakes. The speed limit was 25 miles per hour. The flashing lights and bell on the crossbuck warning device were operating, and the whistle on the engine had been blown intermittently from the time the train left the Mesa depot. The double headlights on the lead end of the engine were operating on high beam.

The case was submitted to the jury on theories of negligence of defendants Sloper and Southern Pacific Transportation Company and contributory negligence of Mrs. DeElena. The jury returned general verdicts in favor of the defendants. Because of the appellee's repeated insistence, both here and in the court below, that its sole duty is to warn travelers on the highway, it is appropriate to reiterate the statement this Court made in 1956 in Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827:

"It is axiomatic that a railroad company owes to travelers on the highway the affirmative duty of due care in the maintenance and safeguarding of its crossings and in the operation of its trains thereon. What constitutes such due care is measured in each instance by the facts of the particular situation.

* * * The common law standard of conduct applicable to a railroad company as to all persons in order to escape liability for injuries of another is to attain the status of a reasonably prudent person under the particular circumstances." 80 Ariz. at 58-59, 292 P.2d at 832-33.

Not only must the railroad give reasonable warning of the crossing and the approach of a train, Atchison, Topeka & Santa Fe Ry. Co. v. Renfroe, 77 Ariz. 28, 266 P.2d 745 (1954), but it must take precautions commensurate with the danger involved at the crossing to avoid injury to the traveling public. See Peri v. Los Angeles Junction Ry., 22 Cal.2d 111, 137 P.2d 441 (1943). Where, in a congested area, a crossing is obstructed and is the site of an accident:

" * * * it may not be enough for the railroad to protect its crossing with the standard crossbuck, to operate its train within the speed limit, and to blow the whistle and ring the bell. The jury is still permitted to determine whether the railroad exercised reasonable care and caution under the circumstances and conditions existing at the time of the accident." Seaboard Coast Line Railroad Co. v. Buchman, 358 So.2d 836, 839-40 (Fla.App.1978).

Hence, whether a railroad is negligent in a particular manner, such as in failing to provide automatic crossing gates, is a question of fact for the jury.

"Ordinarily the issue of the negligence in crossing cases, whether the railroad was negligent in the design and maintenance of the crossing or in the operation of the train, is one of fact as in other negligence cases. (Id. (Peri v. L.A. Junction Ry., 22 Cal.2d) at 120, 137 P.2d 441; Wilkinson v. Southern Pacific Co., 224 Cal.App.2d 478, 487-488, 36 Cal.Rptr. 689.) Whether a defendant is negligent in failing to provide automatic gates is a question of fact for the jury. (See Hogue v. Southern Pacific Co., 1 Cal.3d 253, 258, 81 Cal.Rptr. 765, 460 P.2d 965.) * * *

* * * A railroad company is not necessarily free from negligence, even though it may have literally complied with safety statutes or rules; the circumstances may require it to do more. (Hogue v. Southern Pacific Co., supra, 1 Cal.3d at 258, 81 Cal.Rptr. 765, 460 P.2d 965.) If the peculiar characteristics of a crossing call for the installation of automatic protection or the upgrading of existing automatic protection the railroad may be guilty of negligence in failing to provide such protection. (Hinkle v. Southern Pacific Co., 12 Cal.2d 691, 701-702, 87 P.2d 349.) " Romo v. Southern Pacific Transportation Co., 71 Cal.App.3d 909, 916, 139 Cal.Rptr. 787, 791 (1977).

Appellant argues that wanton misconduct is a tort wholly separate from negligence. But it is settled that wanton misconduct is aggravated negligence. We said in Bryan v. Southern Pacific Co., 79 Ariz. 253, 256, 286 P.2d 761, 762 (1955), that wanton negligence "involves the creation of an unreasonable risk of bodily harm to another (simple negligence) together with a high degree of probability that substantial harm will result (wantonness)." See also Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975), Cert. denied, 425 U.S. 913, 96 S.Ct. 1510, 47 L.Ed.2d 763 (1976); Nicholas v. Baker, 101 Ariz. 151, 416 P.2d 584 (1966). The California courts analyze wanton negligence in this manner. A negligent act will be considered as wanton misconduct if these three elements exist: " '(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.' " Bains v. Western Pacific Railroad Co., 56 Cal.App.3d 902, 905, 128 Cal.Rptr. 778, 779 (1976), Quoting Morgan v. Southern Pacific Transportation Co., 37 Cal.App.3d 1006, 1012, 112 Cal.Rptr. 695, 698 (1974).

The rules by which liability for wanton misconduct is determined are the same as those by which liability for simple negligence is decided. Restatement of Torts, Second § 501. However, contributory negligence will not defeat a plaintiff's claim where wanton negligence is established. Southern Pacific Transportation Co. v. Lueck, supra.

Appellant claims that the trial court erred by excluding evidence which tended to prove the Southern Pacific Transportation Company was guilty of wanton and wilful misconduct and points to several categories of evidence which he believes were wrongfully excluded. It is urged that the principal reason the trial court refused to admit evidence of the railroad's alleged wanton misconduct was because the court thought he had failed to "prove" actionable negligence. 1 The record, however, does not support appellant in this contention.

Appellant sought to introduce studies and reports prepared by the Southern Pacific Company, 2 the Arizona Highway Department, 3 the Arizona Diagnostic team, and the City of Mesa, 4 as proof of wanton misconduct, arguing that the defendant company knew that gates or protective devices other than those being used at the time of the accident were needed to protect the traveling public. The trial court excluded this evidence, finding that without the foundation that pedestrians, bicyclists, or other non-motorists were considered in the reports, the evidence was irrelevant.

The trial court did not err in excluding the evidence. The studies were based on train-motor vehicle collisions and concerned the adequacy of warning given to the occupants of automobiles and trucks. Mrs. DeElena was not in the position of a motorist. She was in an open rather than a closed vehicle. Consequently her vision was unobscured and warning signals both audible and visual were more likely to be seen and heard. Mrs. DeElena's speed in operation of her tricycle, estimated...

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