Southern Pac. Co. v. Cavallo

• Decision Date: 19 March 1958
• Docket Number: No. 6293,6293
• Citation: 84 Ariz. 24,323 P.2d 1
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Tony D. Ciochetti, and Thomas E. Irwin, Appellants, v. E. M. CAVALLO, Appellee.
• Court: Arizona Supreme Court

Page 1

323 P.2d 1

84 Ariz. 24

SOUTHERN PACIFIC COMPANY, a corporation, Tony D. Ciochetti, and Thomas E. Irwin, Appellants, v. E. M. CAVALLO, Appellee.

No. 6293.

Supreme Court of Arizona.

March 19, 1958.

Boyle, Bilby, Thompson & Schoenhair, H. C. Warnock and B. G. Thompson, Jr., Tucson, for appellants.

John P. Somers and Jack T. Arnold, Tucson, for appellee.

WINDES, Justice.

Appellee E. M. Cavallo filed suit against Southern Pacific Company, a corporation, and Tony D. Ciochetti and Thomas E. Irwin, the engineer and fireman respectively of the company's train, for personal injuries resulting from a collision between the train and plaintiff's automobile at a highway-railroad crossing. Plaintiff received verdict and judgment in the sum of $40,000 and the defendants appeal. The first assignment of error is that the court should have granted defendants' motion for judgment n.o.v. To test the correctness of the court's refusal to render judgment for the defendants it is necessary to state in some detail what facts the jury could legally find from the evidence submitted.

The crossing is located in rolling hills. The highway approaches it from the west on a long curve preceded by a cut about two miles in distance and emerges from the curve where it is possible to gain a first view of one of the crossarms indicating the existence of the crossing a distance of from 900 to 1,000 feet. Three hundred twenty feet from the crossing is a large 'R. R.' warning sign painted on the pavement and just past this at a distance of about 20 feet is a clearly visible highway railroad warning sign. There were two crossarm signs one on each side of the railroad which pictures in evidence show were visible from the sign on the pavement. The plaintiff testified that the first notice he had of the existence of a railroad crossing was as he drove over the sign painted on the highway traveling at approximately 40 miles per hour. He also got a glimpse of the adjoining sign. He was traveling east and the train in a northerly direction at a speed of from 10 to 12 miles per hour when the collision occurred. Plaintiff's view to his right, the direction from which the train was approaching, was obstructed by trees to such an extent that it was difficult or impossible for him to observe the approach of the train. The fireman stated it was a bad crossing.

After passing over the sign on the highway the plaintiff admits he did not slack his speed until he had traveled 170 or 175 feet when he saw the engine come from behind the trees about 75 or 80 feet from the road. He immediately applied his brakes and heard the train whistle. As he recalled he heard the whistle immediately after the application of his brakes. From the direction in which the train was coming the railroad proceeds through a cut about 300 feet in length and approximately 25 feet in depth which ended about 600 feet from the crossing. The depositions of the fireman and the engineer were read into evidence and were substantially that the bell was put on at a whistle post approximately one-quarter mile from the crossing and remained ringing constantly, not being turned off until after the collision; that at about the same point the engineer began a series of whistles and that such whistles consisted of two long, one short and one long blast. According to the fireman the final long blast of one series was concluded as the train came out of the cut and another was commenced about 200 feet from the crossing. The engineer stated that he blew a short blast about 100 feet from the crossing and began a long blast about 50 to 75 feet from the crossing. The conductor testified that one series was completed in the cut and that another series was being blown between the cut and the crossing but that he was not certain it was completed because of the collision.

The fireman who was located on the left side of the engine stated that after the train emerged from behind the trees where he could observe the highway to his left, they were blowing the last blast of a preceding series of whistle (which consists of two longs, one short and one long) when he observed the plaintiff coming at what he estimated to be about 60 miles per hour at a distance of about 250 feet from the crossing. He said that at this time the front of the engine was substantially to the edge of the highway and he decided plaintiff was making no effort to stop and yelled to the engineer to 'big-hole' the train which means emergency stop. This was done but the collision occurred. The plaintiff's truck laid down 87 feet of skid marks.

Plaintiff contends that since it was a dangerous crossing due to the terrain and the obstructions, the warning signs of the existence and location of the crossing were inadequate and the jury for this reason could determine that the company was negligent. It is unquestionably true in determining the sufficiency of such warnings all conditions and circumstances are to be considered. We have recently reiterated a test theretofore announced which measures the duty of a railroad to give such warning as will 'create a condition wherein there is no reason to anticipate injury to a person using the highway with due care.' Atchison, T. & S. F. Ry. Co. v. Renfroe, 77 Ariz. 28, 266 P.2d 745, 748. Applying this test to the facts as heretofore related, our view is that there was no reason to anticipate injury to one using the highway with due care. Plaintiff was advised of the existence of the crossing by a sign which he observed from a distance in which he had 320 feet to stop or slow down to where he could stop before reaching the place of collision. The evidence was that the average stopping distance under normal conditions at 40 miles per hour allowing for reaction distance is 117 feet. Thus, absent some other act on the part of defendant which would cause him not to avail himself of precautionary measures, the plaintiff had adequate warning of the existence and location of the crossing and the company cannot be held to have been negligent for not having given adequate warning of the existence of the crossing.

The court submitted to the jury the question of whether the defendants were guilty of negligence under the doctrine of last clear chance. There were two openings in the trees through which the fireman could possibly observe the plaintiff coming down the highway, one close to the crossing where the plaintiff said he first saw the engine 75 or 80 feet therefrom. At this time plaintiff said he was about 130 feet from the crossing. The other opening was approximately 150 feet from the crossing. The fireman testified he first saw the plaintiff coming at a distance of about 250 feet when he emerged from the opening close to the crossing. The cab where the fireman was located was 35 feet back from the front of the engine. Consequently, when the fireman could...