Ruiz v. Southern Pacific Transp. Co.

Decision Date03 September 1981
Docket NumberNo. 4951,4951
Citation1981 NMCA 94,97 N.M. 194,638 P.2d 406
PartiesRamon RUIZ, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, the Atchison, Topeka and Santa FeRailway Company and M. D. Chavez, Defendants-Appellees.
CourtCourt of Appeals of New Mexico
OPINION

WALTERS, Judge.

Plaintiff appeals a summary judgment entered against him on his claims for compensatory and punitive damages against the defendant railways, employees of those railways, and against several John Doe corporations who seem to be included in acts of negligence alleged in Count III of plaintiff's complaint. We reverse.

At the place where the accident occurred in Deming, it was a common practice for nearby residents to cross the railroad tracks when going to and from their homes. There were two worn pathways across the tracks. On the day of the accident plaintiff proceeded on the path leading to the downtown area and encountered a standing train on the tracks. The train had been "made up" between 1:30 and 4:30 p. m., and the crew had parked it slightly to the west of the depot while they went to eat supper. After waiting an undisclosed length of time and not observing any activity or seeing anyone around, plaintiff climbed onto a coupling between the cars to cross to the continuation of the path on the other side of the track. While he was holding on with one hand, one foot on the coupling and the other free to swing down to the ground on the other side, the train jerked and began to move forward. Plaintiff was knocked down; his legs and right hand were run over by the wheels of the train. His legs were amputated; the hand was partially so and later surgically amputated.

The parties undertook vigorous discovery and the deposition testimony before the trial court disclosed that railway employees were aware that at the location where the accident occurred Deming residents, including schoolchildren, "quite often" went underneath or over the cars to get through a standing train. According to plaintiff, "hundreds" of Deming townspeople have crawled over or under standing trains, and it happens every day. They avoid using a nearby underpass because it is a longer route and because, in rainy weather, it becomes flooded. The train's fireman at the time of this incident said that trains have remained stationary in the area from an hour to several days, "depending on the circumstances." All of the railway personnel present on the day of the accident said that the engineer gave the usual two-blast whistle before he started up the train; plaintiff did not remember hearing any sounds before he attempted to climb over the cars, and he heard no train whistles.

I.

Summary judgment should not be granted if there are any material issues of fact. See the myriad of cases collected in the annotation following N.M.R.Civ.P. 56, N.M.S.A. 1978. It appears from the memorandum brief filed with the trial court in support of defendants' motion, and from the Answer Brief filed here, that the basis for granting summary judgment in favor of all defendants was a determination of plaintiff's contributory negligence as a matter of law.

There is no uniformity on that issue in the cases dealing with accidents which occur when plaintiffs are known by the railroad to regularly cross railroad tracks either through open spaces between cars, or over or under standing cars. Compare, e.g., Jones v. Atlanta-Charlotte Air Line Ry. Co., 218 S.C. 537, 63 S.E.2d 476 (1951); Stratton v. Southern Ry. Co., 190 F.2d 917 (4th Cir. 1951); Baltimore & O.R. Co. v. Papa, 133 F.2d 413 (D.C.App.1943); Small v. Boston & Maine R.R., 85 N.H. 330, 159 A. 298 (1932); Lerette v. Director Gen. of Railroads, 306 Ill. 348, 137 N.E. 811 (1923); Weatherford, M.W. & N.W. Ry. Co. v. Thomas, 175 S.W. 822 (Tex.Civ.App.1915); Catlett v. Colorado & S.Ry. Co., 56 Colo. 463, 139 P. 14 (1914); Freeman v. Terry, 144 S.W. 1016 (Tex.Civ.App.1912); Sheridan v. Baltimore & O.R. Co., 101 Md. 50, 60 A. 280 (1905), with, e.g., Chiribel v. Southern Pac. Co., 79 Nev. 311, 383 P.2d 1 (1963); Starovetsky v. Pennsylvania R. Co., 328 Pa. 583, 195 A. 871 (1938); Chesapeake v. O. Ry. Co. v. Daniel's Adm'r., 216 Ky. 89, 287 S.W. 217 (1926); Rodriguez v. International & G.N.R. Co., 27 Tex.Civ.App. 325, 64 S.W. 1005 (1901); Lewis v. Baltimore & O.R. Co., 38 Md. 588, 17 A.R. 521 (1873).

The railroad accident decisions holding contributory negligence as a matter of law variously refer to (1) a safe alternative route available to plaintiff, see Beck v. Southern Ry. Co., 149 N.C. 168, 62 S.E. 883 (1908); Starovetsky, supra ; (2) plaintiff's voluntary assumption of an apparent risk, Daniel's Adm'r. and Lewis, supra ; (3) violation by plaintiff of a statute or ordinance prohibiting clambering over, under, or through a train, Corcoran v. St. Louis, I.M. & S.R. Co., 105 Mo. 399, 16 S.W. 411 (1891); or other similar principles of negligence law.

Most of the cases we have reviewed which reach the legal conclusion of contributory negligence have not discussed proximate cause, but have focused instead on the railroad's lack of knowledge or notice that the train is likely to be crossed, or upon the fixed conviction that plaintiff is obliged to know of the inherent danger, "in the absence of proof that he is an idiot," Rodriguez, supra.

On the other hand, those decisions requiring that the matter be submitted to a jury almost invariably have been concerned with the factual matters which raise questions such as a railroad's duty of care to a known trespasser (see Restatement of Torts (Second), § 334), or of its implied assent or invitation to cross the train by its longstanding acquiescence in the habit of persons to do so; or other justifying or excusing circumstances for plaintiff's conduct, e.g., Lerette, Sheridan, Fruman, supra. "Where it has been the custom or habit for people to cross over, under, or between cars of a train obstructing a crossing, the railroad is held to have the duty to exercise reasonable care." Annot., 27 A.L.R.2d at 379. This rule was recognized in a railroad accident case arising in New Mexico, James v. Atchison, T. & S.F. Ry. Co., 464 F.2d 173 (10th Cir. 1972), the Tenth Circuit noting that New Mexico Uniform Jury Instruction 10.3 requires measurement of the railroad's "extent of duty" by consideration of the surrounding circumstances rather than by "a categorical approach based on the fact of trespass." In Weatherford, supra, at 175 S.W. 825, the Texas Court of Civil Appeals said that "there was not necessarily any danger in crossing (over the couplings) * * * while the train was stationary. The danger was in the movement of the train without notice * * *." Sheridan v. Baltimore & O.R. Co., supra, at 60 A. 281, had earlier made the similar observation: "To cross over the bumpers between two freight cars, when at rest, is not necessarily a dangerous operation. The peril of the situation arises from the danger of the cars starting before the crossing is completed."

We are of the opinion that the instant case, according to the testimony offered by Mr. Ruiz, parallels almost identically the facts of Stratton v. Southern Ry. Co., 190 F.2d 917 (4th Cir. 1951). There, the trial court's dismissal on grounds of failure to show negligence of the railway as the proximate cause of plaintiff's injury, and plaintiff's contributory negligence as a bar to recovery, was reversed on appeal, the court saying:

And we do not think that, under the circumstances of the case, it could be said that recovery should be denied as a matter of law because of contributory negligence. In the first place, whether the plaintiff was guilty of contributory negligence was a question for the jury in view of the evidence that the cars had been standing on the crossing for a longer period of time than allowed by the city ordinance, that it could not be seen from the crossing that an engine was attached to them and that it was customary for persons to pass between cars when the crossing was blocked in this way * * *.

In the second place, even if the plaintiff was guilty of negligence in going between the cars, it was for the jury to say whether the negligence of the defendant in moving the cars suddenly and violently without signal or warning was not the sole proximate cause of his injury * * * in view of the evidence as to the length of time that cars had been blocking the crossing and the custom of persons to cross between them in such circumstances.

In Hunt v. Firestone Tire & Rubber Co., 448 P.2d 1018 (Okl.1968), the court explained that the analysis of proximate cause must be such as to establish it as the efficient cause which sets in motion the chain of circumstances leading to the injury; and if the negligence alleged merely furnishes a condition by which the injury was possible but a second independent act caused the injury, then the existence of the condition cannot be the proximate cause of the injury.

We have recently ruled, in Sweenhart v. Co.-Con, Inc., 95 N.M. 773, 626 P.2d 310 (1981), that even though a prima facie showing of plaintiff's negligence has been made, summary judgment is improper if the issue of proximate cause remains. The language quoted above from the Weatherford, Sheridan, Hunt, and Stratton decisions clearly establishes a line of authority which places the questions of contributory negligence and proximate cause in cases of the kind now before us into the hands of the jury for determination.

The exposition of Lerette, supra, on proximate cause has frequently been cited in railroad accident cases. See, e.g., Bonnier v. Chicago, B. & Q.R. Co., 2 Ill.2d 606, 119 N.E.2d 254 (1954); Russell v. Richardson, 302 Ill.App. 589, 24 N.E.2d 185 (1939). We quote with approval from Lerette, at 137 N.E. 813-814:

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