Maricopa & Phoenix & Salt River Valley Railroad Co. v. Dean

• Decision Date: 28 March 1900
• Docket Number: Civil 718
• Citation: 60 P. 871,7 Ariz. 104
• Parties: MARICOPA AND PHOENIX AND SALT RIVER VALLEY RAILROAD COMPANY, a Corporation, Defendant and Appellant, v. MERTIE LEE DEAN, Administratrix of the Estate of George H. Dean, Deceased, Plaintiff and Appellee
• Court: Arizona Supreme Court

60 P. 871

7 Ariz. 104

MARICOPA AND PHOENIX AND SALT RIVER VALLEY RAILROAD COMPANY, a Corporation, Defendant and Appellant, v. MERTIE LEE DEAN, Administratrix of the Estate of George H. Dean, Deceased, Plaintiff and Appellee

Civil No. 718

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Affirmed.

The facts are stated in the opinion.

Kibbey & Edwards, for Appellant.

Baker &amp Bennett, for Appellee.

OPINION

SLOAN, J.

-- The only error assigned by appellant in this case is that the verdict of the jury was not sustained by the evidence. The appellee, as the administratrix of the estate of George H Dean, deceased, brought suit against the appellant to recover damages for injuries resulting in the death of said George H Dean, deceased, -- caused, as alleged by her in her complaint, through the negligence of the railroad company. The suit was brought by the plaintiff, under the statute, in behalf of herself, as the widow of said Dean, deceased, and as well in behalf of two children, the issue of the marriage between her and said deceased. It appears that on the morning of the 14th of May, 1898, George H. Dean, in company with one Horace Bliss and one Bert Toney, was driving into Tempe on the highway between the villages of Mesa and Tempe, riding in a farm wagon drawn by two horses. Bliss was the driver of the conveyance. While crossing the railway track near Tempe the wagon was run into by appellant's train and Dean and Toney killed and Bliss seriously injured. The railroad crossing where the accident occurred was within the limits of the village of Tempe. It appears that the Hayden Canal parallels the railway track at this point, about one hundred and thirty-five feet to the north. At the place where the wagon-road crosses the ditch the latter is spanned by a bridge. Near the track, and in the direction from the bridge from which the train came on the morning of the accident, there was at that time a row of cottonwood trees, which at least partially obstructed the view. The question of the negligence of the railroad company turned upon whether or not sufficient warning was given of the approach of the train by the ordinary method of whistling for the crossing and the ringing of the bell. Under the assignment of error our inquiry, therefore, is necessarily limited to an examination of the record for the purpose of ascertaining whether the testimony on this point is sufficient to sustain the verdict, and the further question whether the deceased or Bliss, the driver of the wagon, was guilty of contributory negligence.

Bliss testified that on reaching the bridge he almost stopped his horses and looked and listened for the train, but neither saw nor heard it; that from this point until he reached the track the latter was obscured, in the direction from which the train came, by the row of cottonwood trees; that from the bridge towards the track there was first a sharp descent and then an equally sharp ascent to the track; that while in the hollow between the bridge and the track he again stopped and looked and listened for the train, and again neither heard nor saw it; that he then started across, and just as he was going on to the track, for the first time, he saw the approaching train, when it was too late to do anything but jump. John Knight, a witness for plaintiff, testified that at the time of the accident he was standing on the outside of his...