Malin v. Southern Pacific Co.

• Court: Arizona Supreme Court
• Writing for the Court: Stanford, J.
• Citation: Malin v. Southern Pacific Co., 62 Ariz. 126, 154 P.2d 790 (Ariz. 1944)
• Decision Date: 20 December 1944
• Docket Number: Civil 4632
• Parties: JAMES MALIN and ELENE MALIN, His Wife, Appellants, v. SOUTHERN PACIFIC COMPANY, a Corporation, O. L. DOUGLAS and C. W. ORMSBY, Appellees

154 P.2d 790

62 Ariz. 126

JAMES MALIN and ELENE MALIN, His Wife, Appellants, v. SOUTHERN PACIFIC COMPANY, a Corporation, O. L. DOUGLAS and C. W. ORMSBY, Appellees

Civil No. 4632

Supreme Court of Arizona

December 20, 1944

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.

Judgment affirmed.

Messrs Struckmeyer & Struckmeyer, for Appellants.

Mr Lawrence L. Howe, of San Francisco, California, for Appellees.

Stanford J. McAlister, C. J., and Ross, J., concur.

OPINION

Stanford, J.

The third amended complaint filed in the superior court of Maricopa County alleges:

"On the 22nd day of June, 1941, in the Town of Chandler, Arizona, the defendants, and each of them, negligently stopped a railroad train then belonging to the Southern Pacific Railroad Company across a public highway known as Cleveland Street, and negligently failed to provide warning signs or signals of the presence thereof, the defendants, and each of them, then knowing that the said railroad train constituted a hidden trap and danger to motorists using Cleveland Street."

The appeal was brought to this court from an order dismissing the third amended complaint and from the judgment in favor of appellees following the dismissal.

Appellants submit this assignment of error:

"The court erred in dismissing plaintiff's amended complaint for failure to state a cause of action, and in ordering judgment for defendants."

On that assignment of error appellants offer these propositions of law:

"1. On a motion to dismiss for failure to state a claim upon which relief can be granted, all of the material allegations of the complaint must be taken as admitted and true.

"2. Under ordinary circumstances, no recovery may be had by a motorist who runs into a train standing on a crossing.

"3. When a railroad company fails to give such notice of the presence of a train standing on a track as a reasonably prudent man would be expected to give under the circumstances, it is guilty of negligence.

"4. Where conditions at a railroad crossing create an unusual hazard or danger the question of whether the railroad operator has exercised care commensurate with the hazard or danger to motorist is a fact question for the jury."

Appellants rely on the cases of Snyder v. Betsch, 56 Ariz. 508, 109 P.2d 613, and Marston v. Denton, 60 Ariz. 178, 134 P.2d 158, 162, and from the latter we quote:

". . . Granting a motion to dismiss an action has the effect of denying a plaintiff the right to have his case heard on its merits and this should never be done unless the facts are such that under no possible theory could it be said the relief sought could be granted."

Also Continental Collieries v. Shober, 3 Cir., 130 F.2d 631, 635:

"While most defenses are to be pleaded affirmatively under the Federal Rules, Rule 12(b) (6) [28 U.S.C. A. following section 723c] provides that the defense may take the form of a motion to dismiss for 'failure to state a claim upon which relief can be granted.' As observed in Leimer v. State Mut. Life Assur. Co., 8 Cir., 108 F.2d 302, 305, 306, 'Such a motion, of course, serves a useful purpose where, for instance, a complaint states a claim based upon a wrong for which there is clearly no remedy, or a claim which the plaintiff is without right or power to assert and for which no relief could possibly be granted to him, or a claim which the averments of the complaint show conclusively to be barred by limitations.' However the court in the Leimer case went on to admonish that there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. See also De Loach v. Crowley's, Inc., 5 Cir., 128 F.2d 378, 380. No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it."

The general rule concerning the recovery of damages when the driver runs an automobile into a train standing upon the track is set forth in our case of Doty v. Southern Pacific Co., 59 Ariz. 449, 129 Pac. (2d) 991, 992, and the appellants cite the following paragraph:

"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."

Appellants do not rely on the general rule but rely on the exception. The exception was unavailing in the Doty case, and therefore the reference of the appellants to the cases of Peri v. L. A. Junction Ry., 22 Cal.2d 111, 137 P.2d 441 and Cox v. Polson Logging Co., 18 Wash.2d 49, 138 P.2d 169.

From the case of Peri v. L. A. Junction Ry., supra [22 Cal.2d 111, 137 P.2d 448], we quote the following:

"Minnesota apparently adopts the view that the presence of a train on a crossing is sufficient warning in itself, in the absence of an unusual or extrahazardous condition. The view which is more modern in the age of the automobile and more compatible with realities is expressed in the dissenting opinion in Ausen v. Minneapolis, St. P. & S. S. M. Ry Co., 193 Minn. 316, 258 N.W. 511, 515: 'Today it is a matter of common knowledge that automobiles are driven at night on our great, wide, straight highways at speeds which do not allow adequate time or space in which to stop for unusual objects such as freight trains completely obstructing the highway unless some warning of the...