Lewis v. Southern Pac. Co.
| Decision Date | 05 April 1967 |
| Docket Number | No. 8056,8056 |
| Citation | 102 Ariz. 108,425 P.2d 840 |
| Parties | Della LEWIS, widow of John Washington Lewis, deceased, Appellant, v. SOUTHERN PACIFIC COMPANY et al., Appellees. |
| Court | Arizona Supreme Court |
Alan P. Bayham, Phoenix, for appellant.
Evans, Kitchel & Jenckes, by Conrad R. Kohrs, Phoenix, for appellees.
This is an appeal from a judgment following a jury verdict in favor of the defendants, Southern Pacific Co., Inc., and Carl Ball, Dan W. Whitener and Claude William McCorkle, employees of the Southern Pacific Co., Inc., and from an order of the trial court denying plaintiff's motion for a new trial.
The plaintiff, Della Lewis, instituted this action for the wrongful death of her husband, John Washington Lewis, against Southern Pacific and its engineer, fireman and conductor who were operating the train which struck the decedent's car at the Ninety-first Avenue crossing of defendant's tracks.
Plaintiff offered evidence to prove that on two occasions, eight months and thirteen years respectively, prior to this accident, the defendant engineer had been cited for violating the railroad's speed limits. Evidence was also offered on the engineer's involvement in a crossing collision with a motor vehicle seven years prior to this accident, in order to prove that the railroad retained an incompetent employee and permitted him to operate its train. The evidence concerning the engineer was excluded, as was evidence offered to prove that the fireman had previously misinterpreted a signal and was suffering from a back injury at the time of this accident and was therefore also known by the railroad employer to be an incompetent employee, thus tending to establish negligence on the part of the railroad in entrusting its train to the engineer and fireman of whose alleged incompetency it was aware.
The refusal of the trial court to admit evidence of the incompetency of the railroad employees, was not error. Here the railroad did not dispute that the defendants Ball and Whitener were employees of the railroad, acting within the course of their employment at the time of the accident. If the defendant employees were actually negligent at the time of the accident and proximately caused the accident, this is sufficient to establish the railroad's liability. But the failure of an employer to hire only competent and experienced employees does not of itself constitute an independent ground of actionable negligence. Carlson v. Connecticut Co., 94 Conn. 131, 108 A. 531, 8 A.L.R. 569; Minot v. Snavely, 8 Cir., 172 F. 212, 19 Ann.Cas 996; Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P. 136; Grand Rapids & I.R. Co. v. Ellison, 117 Ind. 234, 20 N.E. 135; Black v. Hunt, 96 Conn. 663, 115 A. 429; 35 Am.Jur., Master & Servant, § 548, page 978.
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Ponticas v. KMS Investments, C7-81-1026.
...jurisdictions in older cases have refused to recognize negligent hiring as an independent cause of action. See Lewis v. Southern Pacific Co., 102 Ariz. 108, 425 P.2d 840 (1967); Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P. 136 (1911); Black v. Hunt, 96 Conn. 663, 115 A. 429 (1921);......
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...evidence will not be held to be prejudicial error if its admission would not have changed the result. Lewis v. Southern Pacific Company, 102 Ariz. 108, 425 P.2d 840 (1967); Parker v. State, 89 Ariz. 124, 359 P.2d 63 (1961); Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141 ......
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...themselves cast some doubt on the matter. The first Arizona case ever to deal with this topic appears to be Lewis v. Southern Pacific Co., 102 Ariz. 108, 425 P.2d 840 (1967). There the plaintiff brought an action against the railroad and one of its locomotive engineers to recover for the wr......
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...Inc. (N.D.Ind.1966) 257 F.Supp. 319, 321-322; General Electric Company v. Rees (9th Cir.1954) 217 F.2d 595; Lewis v. Southern Pacific Co. 102 Ariz. 108 [425 P.2d 840].) In other words, if liability to a third person for the act of an employee is to exist, it must be predicated upon the wron......