Doty v. Southern Pacific Co.

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, C.J.
• Citation: Doty v. Southern Pacific Co., 59 Ariz. 449, 129 P.2d 991 (Ariz. 1942)
• Decision Date: 19 October 1942
• Docket Number: Civil 4498
• Parties: I. E. DOTY and MARY DOTY, his wife, Appellants, v. THE SOUTHERN PACIFIC COMPANY, a Corporation, Appellee

129 P.2d 991

59 Ariz. 449

I. E. DOTY and MARY DOTY, his wife, Appellants, v. THE SOUTHERN PACIFIC COMPANY, a Corporation, Appellee

Civil No. 4498

Supreme Court of Arizona

October 19, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Messrs Dykes & Selden, for Appellants.

Messrs Baker & Whitney, and Mr. Harold E. Whitney, for Appellee.

OPINION

LOCKWOOD, C.J.

I. E Doty and Mary Doty, his wife, plaintiffs, brought suit against Southern Pacific Company, a corporation, defendant for damages alleged to have been sustained by the negligence of the latter. After plaintiffs had filed their first amended complaint, defendant moved to dismiss on the ground that it did not state a cause of action, and the motion was granted, whereupon this appeal was taken.

The sole question before us is whether the amended complaint states facts showing that plaintiff Mary Doty's injuries were caused by the negligence of defendant. Its allegations, after setting up the capacity of the parties and that defendant operated a railroad system crossing State Highway No. 86, continued, so far as material, as follows:

"IV. That at the said crossing, the defendant,... maintained four railroad tracks including its main line running approximately in an easterly and westerly direction, as the said Highway No. 86 crosses all four of said railroad tracks in approximately a northerly and southerly direction.

"V. That,... a Y or spur track, which runs in in a generally northeasterly direction,... is and was maintained by the defendant at said crossing.

"That to the north and west of said Y or spur track, the said Highway No. 86 is in a long, sweeping curve so that the lights of an automobile approaching said crossing at night are thrown off of the road and to the left side thereof. That there are, and were on November 18th, 1940, no warning signs upon the left side of said highway and to the north of said main crossing or of said spur....

"That immediately after crossing the aforesaid spur track, the aforesaid highway,... does, drop down a steep incline to within a short distance of the aforesaid main crossing over defendant's railroad tracks.

"That at a distance of about forty-six (46) feet from the northermost of said railroad tracks, at said main crossing, there was, at the time of the accident herein complained of, a low place or gully where the road was worn and rough. To the south of this gully, thereto, there was at said time, and had been for a long time prior thereto, to the knowledge of the defendant, a leveling off from the steep descent of the road from the aforesaid spur track, and a rise in said highway to the said crossing, so that the lights of an automobile, after crossing said spur track, would be thrown downwards as far as the bottom of said steep incline and then absorbed in the roadway beyond.

"That the crossing sign maintained bythe defendant to the north of said Y or spur track was entirely on the right or west side of the highway,....

"That the crossing sign to warn travelers of the main tracks was also on the west of said Highway No. 86,.... That said Highway No. 86, is and was at all times material hereto, a much used road for both intrastate and interstate travel both by day and by night.

"VI. That on November 18, 1940, at or about the hour of 1:25 o'clock in the morning..., and while it was very dark, the plaintiffs were traveling slowly in their Ford automobile..., in a southerly direction along and upon said Highway No. 86 and approaching the aforesaid crossing..: That... neither of plaintiffs had ever been over the particular portion of State Highway No. 86 hereinabove mentioned and neither of plaintiffs had any knowledge whatever of the proximity of the aforesaid R. R. Crossing. That at the time the plaintiffs were approaching said crossing as aforesaid the defendant negligently and carelessly caused a very long freight train to be stopped for a considerable length of time upon the northernmost rails of its main tracks across said Highway, and with its engine far to the east of said crossing."

The complaint then alleges that the automobile in which plaintiffs were traveling ran into the freight train, and plaintiff Mary Doty was seriously injured. It is alleged that defendant was negligent in that it did not give certain speicified warning signs of the presence of the train and track aforesaid.

We must, of course, for the purpose of the appeal, assume that the allegations of fact in the complaint are true. We must also assume that if there is any omission of facts necessary to sustain the complaint, such facts do not exist, for pleadings are taken in the strongest manner against the pleader.

It is admitted by plaintiffs in their brief that it was neither statutory nor common-law negligence for defendant to stop its train across the highway as it did. It is further admitted that it did not violate any statutory provisions in regard to the warning it was required to give of the presence of either the train or the tracks. But, it is contended that defendant was guilty of common-law negligence in failing to give such warning as was reasonably required under the peculiar physical conditions existing at the time and place of the accident.

It is almost universally held that usually, when the driver of an automobile runs into a train standing still across a highway, no recovery can be had by the driver for damages caused by the collision. But there is an exception to this rule. When the railroad company has failed to give such notice of the presence of the track and train as a reasonably prudent man would be expected to give under the particular circumstances, it is guilty of negligence and the question of liability is one for a jury. We consider the rule and the exception as applied to the particular circumstances of the case.

The allegations of the complaint in regard to negligence may be summarized as follows: At the place where the accident occurred defendant maintained four main tracks running approximately east and west, and a spur track running northeasterly from the north main track at a "short distance." Highway No. 86 approaches the spur by a long, sweeping curve and then crosses the spur and main tracks at approximately a right angle. On the right-hand side of the highway there is a warning signal of the usual type before reaching the spur, and another one before reaching the main tracks. After crossing the spur the highway dips sharply to a little gully, and immediately after it crosses this gully straightens out to a level approximately 46 feet from the main tracks of defendant. The situation is such that an automobile approaching the spur track will have its lights deflected to the left on account of the curve, so that the stop signal the right of the spur track is not visible. There is no allegation, however, as to whether, at the place where the highway actually crosses the spur, the stop signal by the main tracks or the main tracks themselves, or a train standing thereon, would be visible at night to the driver of an automobile by its headlights. It is further alleged that after the spur track is crossed the lights of an automobile will be deflected downward, due to the sharp dip...