Morenci Southern Ry. Co. v. Monsour

• Decision Date: 23 December 1919
• Docket Number: Civil 1734
• Parties: MORENCI SOUTHERN RAILWAY COMPANY, a Corporation, Appellant, v. N. J. MONSOUR, Appellee
• Court: Arizona Supreme Court

185 P. 938

21 Ariz. 148

MORENCI SOUTHERN RAILWAY COMPANY, a Corporation, Appellant, v. N. J. MONSOUR, Appellee

Civil No. 1734

Supreme Court of Arizona

December 23, 1919

APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge. Reversed and remanded, with instructions to grant new trial.

Messrs Ellinwood & Ross, Mr. Clifton Mathews and Messrs. Stratton &amp Lynch, for Appellant.

Mr. L Kearney, for Appellee.

OPINION

ROSS, J.

The plaintiff-appellee was the owner and operator of a public service automobile carrying passengers for hire between the towns of Morenci and Clifton in Greenlee county, this state. About 4:30 in the afternoon of August 28 1918, while attempting to cross the railroad track of defendant-appellant, at a public crossing in the town of Morenci, the automobile was run into by one of defendant's engines, and almost completely destroyed. The crossing where the accident happened is not in the most populous portion of Morenci, but is in the vicinity of appellant's roundhouse, the machine-shops of Phelps-Dodge Company, and a garage, and is much used by the general public. The crossing is in a canyon, and is considerably lower than the surrounding country. At the time of the accident, plaintiff was approaching the crossing on a descending grade and defendant on an ascending grade. By actual measurements, the plaintiff's automobile, in approaching crossing 150 feet away, was ten and nine-tenths feet higher, 100 feet away, six feet higher, and fifty feet away, two and three-tenths feet higher than the elevation at the crossing. The railroad track approaches the crossing through a cut on an ascending grade of two and one-half per cent. The approach is at a considerable curve in the track, but the crossing is at right angles. The elevation on the highway was such that one looking down at the crossing and the track in the direction from which the engine was coming could, at the fifty-foot point, according to actual observation and measurement, observe the railroad track for a distance of 180 feet from the crossing, and at points intervening between the fifty-foot point and the track a like view of the track could be had. Some walls of masonry and a residence building are mentioned as obstructions to the view. There was some evidence tending to show that the confusion of noises from machinery and roundhouses located adjacent to the crossing made it difficult to locate and distinguish sounds. Plaintiff was perfectly familiar with the crossing and surroundings and conditions thereof, having averaged six trips a day over it for four years as a driver of a public service car. The crossing was regarded as a dangerous one.

The grounds of negligence charged in the complaint against defendant are as follows:

(2)In negligently failing and omitting to keep an outlook for automobiles passing over said crossing.

(3)In negligently omitting and failing to reduce the speed of the locomotive to a rate of not exceeding six miles an hour when approaching said crossing, it being dangerous to exceed that rate at said crossing, when in fact it was negligently running at the time of the accident at a rate of about thirty miles per hour.

(4)In negligently omitting and failing to keep its said locomotive under proper control so that it could have been stopped in time to have avoided said collision.

(5)In negligently omitting and failing to ring its bell at a distance of not less than eighty rods from said crossing, and to keep the same ringing until past said crossing.

(6)In negligently omitting and failing to maintain a watchman or other automatic signal, or other appliance to warn travelers of the approach of its locomotives and cars at said crossing at the time of the collision and accident.

The defendant set up in its answer that the injury and damage claimed were caused solely by the negligence of plaintiff in not keeping his automobile in control, in operating it at an excessive and dangerous rate of speed, and in wholly failing to stop or look or listen for the approach of defendant's engine.

The defendant also pleaded contributory negligence, assigning as grounds thereof the same acts of negligence as above set forth in its first ground of defense. From a verdict and judgment in favor of plaintiff, defendant appeals, assigning errors based upon seven instructions given and one refused. The testimony upon the different issues of fact was sharply in conflict; and, the jury having found thereon in favor of plaintiff, the defendant does not contest or dispute the correctness of the verdict, providing the court correctly informed the jury as to the law applicable to the facts.

We will consider these instructions in the order of their assignment.

The court defined negligence as follows:

"In a general sense, negligence is the absence of ordinary care, or negligence may be otherwise defined as doing something which under existing circumstances and conditions a person of ordinary care and prudence would not do, or, on the other hand, omitting to do something which, under the existing circumstances and conditions, a person of ordinary care and prudence would have done."

In Railroad Co. v. Jones, 95 U.S. 439-441, 24 L.Ed. 506 (see also, Rose's U.S. Notes), negligence is defined as follows:

"Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission."

Tested by this definition of negligence, we think the instruction given, and to which exception is taken, is erroneous. Literally, it defines caution or care of a prudent person, and pronounces it negligence. The omission to do something that a prudent person would not have done under the existing conditions ordinarily would be commended as most proper. But when the expression is viewed broadly and sympathetically, it is difficult, if not unreasonable, to believe that the jury misunderstood what was intended to be stated by the court, or that it was misled by the loose and inapt language used. Positive, active negligence was properly defined, using as a standard what a prudent person would have done under the circumstances. Negative, or negligence arising from failure to do some duty imposed by law is measured by the same standard. The one is a fault by omission and the other by commission, and we little doubt the jury so understood. If the expression is read, "Negligence is, . . . on the other hand, omitting to do something which under the existing circumstances and conditions a person of ordinary care and prudence would not have omitted to do," we have but a slight variance from the text, or if the word "not" in the last line of the instruction is dropped, negligence by omission is fairly defined. We conclude, while this instruction was not strictly correct, that defendant was hardly prejudiced thereby.

The next instruction is based upon paragraph 2164, Civil Code, and is in these words:

"The court instructs the jury that all locomotives must be provided with a twenty-pound weight bell, which must be rung at least a distance of eighty rods from the crossing of any street, road, or highway, and the bell must be kept ringing until the crossing is passed or the locomotive stopped and that a failure to do this is negligence; so, in this case, if you believe from the evidence that the defendant was negligent in this regard, and that such negligence was the proximate cause of the injury, and that the plaintiff exercised ordinary care for his own safety, your verdict should be for the plaintiff."

The statute is that each locomotive must have a bell of at least twenty-pounds weight, which shall be rung at a distance of not less than eighty rods from the crossing of any public street, road or highway, and the railroad is made liable for all damages any person may sustain by reason of a noncompliance with this requirement.

The above instruction is not good as a statutory instruction, because it goes beyond the terms of the statute, and is more onerous than the statute prescribes. Texas etc. Ry. Co. v. Scrivener, 49 S.W. 649; St. Louis etc. Ry. Co. v. Rawley, 90 Ill.App. 653; Edwards v. Atlantic Coast Line Ry. Co., 132 N.C. 99, 43 S.E. 585.

It is not correct as a common-law instruction because it fails to recognize that other signals, such as the blowing of the whistle, may be employed with equal effectiveness to warn or inform persons to be on the lookout. The crossing admittedly being a dangerous one, the duty of the company under the common law doubtless was not only to ring the bell at eighty rods or earlier, and to keep it ringing continuously until the crossing was reached or crossed, but also to sound the whistle at frequent intervals. Now, the testimony of the defendant's witnesses was to the effect that both of these things were done. They say the bell was rung at eighty rods and continuously until the engine collided with the automobile; also that the whistle was sounded at 1,100 feet and 250 feet from the crossing, the last time with two long and two short blasts. The effort to signal the engine's approach by sounding the whistle was completely ignored in the instruction. At common law, the duty is to adequately warn, not in any particular way, but by any means that are effective. It might be by watchman or automatic signals, or by whistling or by ringing a bell, or by all of these combined, but when the evidence shows that two or more of these were actually employed in a given instance, as here, an instruction that, if the jury find that one of these was not employed, the defendant is guilty of...