Southern Pac. Co. v. Barnes

• Decision Date: 17 June 1966
• Docket Number: CA--CIV,No. 2,2
• Citation: 3 Ariz.App. 483,415 P.2d 579
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Appellant, v. Ruth L. BARNES, Administratrix of the Estate of Edith Lorraine Geer, deceased, Appellee. 151.
• Court: Arizona Court of Appeals

Page 579

415 P.2d 579

3 Ariz.App. 483

SOUTHERN PACIFIC COMPANY, a corporation, Appellant, v. Ruth L. BARNES, Administratrix of the Estate of Edith Lorraine Geer, deceased, Appellee.

No. 2 CA--CIV 151.

Court of Appeals of Arizona.

June 17, 1966.

Rehearing Denied Aug. 8, 1966.

Boyle, Bilby, Thompson & Shoenhair, by Richard M. Bilby, Tucson, for appellant.

Warren R. Brock, Tucson, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered in a wrongful death action upon jury findings against the defendant-railroad in connection with the death of an eleven year old girl who was killed on November 3, 1963, as the result of a crossing accident in the City of Tucson at the intersection of Ajo Way and the Tucson-Nogales spur line of the defendant.

The facts giving rise to the accident are stated favorably to upholding the judgment rendered below. The accident occurred at dusk on the evening in question, at a time when the Southern Pacific Company had a twenty-two car ore train heading north returning from a mining operation south of the City of Tucson. This railroad line was not heavily used, the evidence being that on the average nine trains passed in each way every ten days. The speed limit set by the railroad for the area of track in question was 49 miles per hour. This was the maximum allowed by applicable Interstate Commerce Commission regulations for 'nonblock territories' such as this. Though it was customary for the Southern Pacific Company to have a speed tape in all locomotives, which would have provided a record of the speed of this train, the tape on the particular engine had run out and was not recording at the time of the accident. Estimates of witnesses as to the speed of the train varied from 35 to 80 miles per hour.

Ajo Way is a heavily-traveled highway just to the south of the City of Tucson, with vehicles crossing the railroad track on the average of approximately one every ten seconds. As the train crew approached the intersection on the evening in question they could see a number of cars crossing the intersection ahead apparently unaware of the approaching train. The engineer did not attempt to reduce speed until the very instant of the collision giving rise to this action. The train crew had had near misses at this intersection on numerous previous occasions.

The vehicle in which the plaintiff's deceased was a passenger was driven by her grandfather, George F. Gray, who was joined as a defendant in the action. The Grays were on their way to evening church services, proceeding eastwardly, coming from the train's left side, when their car was hit on its right rear side. This locomotive was constructed in such manner that the engineer, sitting on the right side, had practically no view to the left side of the track ahead. The fireman, sitting on the left side of the cab, had his view to the left side substantially blocked by a steel plate. The head brakeman, riding on the left side behind the fireman, had a better view to the left and prior to the collision realized there was imminent danger of a collision with the Gray car. He reached down to secure his lantern, turned same on, and pointed the beam of the lantern at the approaching car to attempt to warn it of the presence of the train. No effective warning, however, was given to the engineer, who testified that his first awareness of this car was when he saw the front headlight of it on his side of the engine a split second before the collision. There was no flashing light or other automatic signaling equipment at the intersection in question, the only warnings being a standard 'crossbuck' signal located to the right of Ajo Way at the edge of the railroad right-of-way and a standard highway railroad crossing sign some 300 feet back on Ajo Way. The engine in question had headlights on but the lights were of an older type than used in many locomotives, which more modern lights ('Mars' type) oscillate so as to be more apt to attract the attention of traveling motorists. Both the bell and the whistle of the train were sounding prior to the accident. The driver of the car in which the deceased was a passenger was an elderly person, with some impairment to his hearing. There was an obstruction to visibility in the southwest quadrant of this intersection, consisting of a house and some trees, 150 feet back from the intersection, which could have interfered with Mr. Gray's detection of the oncoming train. A passenger in another car proceeding in the opposite direction to the Gray vehicle, without any such obstruction, testified that the car in which she was riding was almost struck by the train and they were not aware of the presence of the train until it was within ten or fifteen feet of them. Their car had to accelerate abruptly to beat the train across the track.

Officials of the defendant-railroad who were in charge of determining whether automatic signaling equipment should be installed at crossings testified that the most important factor in determining whether such signaling equipment should be installed was the accident record of the particular crossing. In their opinion, any accident at this crossing, without any time limit expressed as to when the accident happened, would be pertinent to this determination. Prior to this accident, there had been vehicular crossing accidents at this same location sometime in 1954: November 26, 1955; on November 24, 1956; on January 15, 1957; on January 31, 1961; on January 20, 1962; on April 1, 1962; on May 26, 1962; on December 11, 1962; and on February 21, 1963. The January 20, 1962 accident was a fatal one.

The defendant introduced in evidence a tabulation of crossing accidents in Pima County since January 1, 1964, which went past March 9, 1964, the date of the installation of a flashing light signal at Ajo Way. After this, there were no further accidents at the crossing. Prior to November 3, 1963, the date of the instant accident, there had been a total of thirty accidents at the eighty-three railroad crossings in Pima County since January 1, 1961. Six of these (20 per cent) had occurred at the subject crossing on this comparatively seldom used spur line. The maximum speed limit for the area of track in question had been increased from 20 to 25 miles per hour on February 17, 1960 and on May 2, 1961 it had been increased from 25 miles per hour to 49 miles per hour.

As early as June 11, 1962 the defendant had determined that it would be advisable to install an automatic flashing light signal at this crossing and had written to the City of Tucson asking for financial contribution to the cost of such a signal. The cost of the signal in question was $6,070. The railroad was of the opinion that under applicable law it could require the City of Tucson to pay one-half of the cost of the installation. The city, however, did not respond promptly to the inquiry, and did not prior to the accident in question agree to pay for any share of the signal. For this reason, the signal was not installed until after the accident in question.

The first question presented for review is stated in the appellant's brief as follows:

'Can portions of complaints filed in previous cases against the Defendant railroad arising out of accidents at the crossing in question be read to the jury where the railroad has already admitted notice of the prior accidents in question?'

An examination of the record indicates the following sequence of procedures giving rise to the question so presented. As a preliminary discovery device, the plaintiff had filed in this action interrogatories to the defendant among which was the following question:

'What collisions prior to 8 years before the accident have occurred between Southern Pacific Company trains and motor vehicles at the grade crossing prior or subsequent to the accident in question? Please give the name or names of persons involved, known witnesses to any accidents, the name of the engineer and fireman of any train involved in a collision with a motor vehicle and the dates upon which such accidents occurred.'

To this question, the defendant filed under oath a statement of accidents at this crossing beginning with the accident of January 31, 1961, but omitting three prior accidents which were within the time limit of the question.

Also, an interrogatory was submitted as follows:

'Has anyone within 8 years prior to the accident or subsequent to the accident complained or otherwise made comment to the Southern Pacific Company through any of its officers, agents, or employees, either orally or in writing, that the crossing in question was dangerous, hazardous, unsafe or other statements of like import?'

To this interrogatory, the defendant filed the following answer:

'No record of complaints or other comments to the Southern Pacific concerning crossing conditions within the 8 year period prior to the accident or subsequent to the accident.'

These two interrogatories and answers thereto were admitted in evidence and no question is raised on appeal as to the propriety of so doing. Previous to the admission of these interrogatories, the trial court had ruled at the instance of the plaintiff and over the objection of the defendant that portions of complaints filed in the superior court of Pima County against the defendant because of Ajo Way crossing accidents were admissible '* * * only on the issue of notice.' Thereafter, the court permitted the plaintiff to read into the record portions of four complaints filed in civil actions claiming damages for injuries suffered in crossing accidents at the intersection in question. The portions of the complaints read were limited to the names of the parties and the allegations of negligence pertaining to the condition of the crossing together with the dates that it was alleged the crossing was negligently maintained.

The first complaint so read alleged that on October 1, 1954 the defendant maintained the crossing '* * * in a...