Southern Pac. Co. v. Watkins

• Citation: 435 P.2d 498,83 Nev. 471
• Decision Date: 07 December 1967
• Docket Number: No. 5272,5272
• Parties: SOUTHERN PACIFIC COMPANY, Appellant, v. Robert L. WATKINS, Respondent.
• Court: Supreme Court of Nevada

Page 498

435 P.2d 498

83 Nev. 471

SOUTHERN PACIFIC COMPANY, Appellant, v. Robert L. WATKINS, Respondent.

No. 5272.

Supreme Court of Nevada.

Dec. 7, 1967.

Rehearing Denied Jan. 25, 1968.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, for appellant.

Breen & Young and Jerry Carr White-head, Reno, for respondent.

OPINION

COLLINS, Justice.

This is an action by Robert L. Watkins against the Southern Pacific Railroad for personal injuries and property damage suffered by him as a result of a train-car collision at a railroad crossing. This appeal is from an order of the trial court denying a new trial, and from a judgment of the trial court based upon the verdict of a jury in favor of respondent Watkins and against appellant Southern Pacific Company for the sum of $134,737.45. The award by the jury was for compensatory damage. The jury refused a request for punitive damage against appellant.

Appellant assigns as error the following legal issues:

1. Admission of evidence of prior accidents at the same railroad crossing.

2. Reception of the testimony of witness Capshaw giving his opinion of the degree of danger at the crossing involved.

3. Reception of testimony of witness DeMers calling for his opinion as to the degree of danger at the crossing.

4. Giving of instructions No. 22, 23, 26 and 31.

5. Refusal to give appellant's offered instruction No. 3.

6. Refusal to permit appellant to call a witness located during the trial and not listed as one of his witnesses before trial.

7. Making the depondent, Gary Hansen, the court's witness in part.

8. Refusal to grant a new trial on the ground of excessive damages.

9. Refusal to grant a new trial on the ground that the verdict resulted from the jury's manifest disregard of the court's instructions. instructions.

The jury having found for respondent and against appellant requires that we state the facts in accordance with those findings. Robert L. Watkins of Reno was injured November 4, 1964 when his pickup truck was rammed by a locomotive at a Southern Pacific grade crossing at Sparks, Nevada, known at Standord Way. Stanford Way is a two-lane, north-south highway. At this particular crossing, twelve sets of railroad tracks traverse Stanford Way in an east-west direction. These dozen tracks form the eastern portion of the Sparks switching yard and amount to the largest group of tracks to cross a roadway within the entire division of the Southern Pacific Co. One-half second is the normal time to traverse a railroad crossing. To cross Stanford Way it requires approximately fourteen times as long. The surface of the crossing is very rough and tends to create a noise that is distracting to drivers. The crossing is very active. It had an estimated auto traffic of 4300 motor vehicles on the day of the accident. Its train traffic, on the average, consisted of 8,500 trains per year, in addition to some 10 to 55 switching operations which crossed the roadway daily. The crossing has no electronic gates, gongs, or other devices to warn motorists of the approach of locomotives or trains.

There was conflicting evidence as to the hight level required and maintained at the crossing by Southern Pacific Co. Testimony indicated that the American Standards Association recommendations call for at least one foot-candle of light on railroad crossings, and for as much as 5 foot-candles if the crossing is of an industrial nature. One expert testified that he found, through photometer tests, the level of light to vary between 1.35 and .35 foot-candles. Another stated it was as low as .35 on the road, .13 only 30 feet from the roadway, and only .015 at a point on the road 100 feet south of the tracks. The experts further related that the lighting should not be spotty because such lighting causes a substantial impairment of vision. Minimum standards were said to require a variance of less than 3 to 1, whereas evidence indicated the ratio of variance at this crossing to be as great as 12 to 1. One expert said that it would be safer to remove all lighting rather than to maintain it in such an irregular state.

Evidence indicated that the Southern Pacific Co. was placed on notice of the increasing traffic conditions and dangerous defect of the crossing. It included the following:

1. That at the request of the City of Sparks, a meeting was held between city and railroad officials to discuss the accident rate at the crossing wherein the city officials asked the railroad to post flagmen at the crossing or to otherwise protect the public. The railroad took no action.

2. That the railroad had taken no action upon a promise to the Sparks city council by a railroad executive to recommend the provision of more light at the crossing.

3. That the railroad secured an injunction against the Sparks city council's attempted remedy of the situation, by enactment of an ordinance requiring flagmen at the crossing.

4. That during the 10 months preceding this particular accident, seven other accidents under somewhat similar conditions had occurred at the Stanford Way Crossing and the railroad had yet to have the crossing examined by lighting or safety engineers.

5. That the Southern Pacific Co. was informed by an engineer for Sierra Pacific Power Co. that the lighting at the Stanford Way Crossing for the roadway and the 200 feet of adjoining track could be increased to 5 foot-candles for the cost of $2,500 and that the railroad company indicated it did not intend to improve the lighting.

The locomotive involved in the accident is a roadswitcher, larger, more powerful and of a different design than a normal switch engine. It is over 55 feet in length, weighs approximately 250,000 pounds and is black in color. When the engine is moving in a reverse motion, the length of the engine precedes the cab containing the engineer and fireman. While in reverse the engineer's field of vision from the cab is limited to his side of the engine. The fireman's vision is equally limited on the opposite side. The function of the fireman is to be the eyes of the engineer as to things on his side of the engine and either to relay a warning or in an emergency to actuate a brake available to him. A few months before the Watkins' injury, the Southern Pacific Railroad removed firemen from the engines in the Sparks yard. Since they were not replaced by other available employees who would serve a lookouts, the result was that every time such an engine crossed Stanford Way, the engineer drove blind as to one direction of the vehicular traffic, a condition which was aggravated even further when travelling in reverse. The Southern Pacific Co. had been notified that the removal of the firemen hampered the effective visibility of the engineer and thus constituted a hazard.

Witnesses testified that, on the night of the injury, two or more boxcars were located on the middle tracks east of the crossing. Due to the switching operations at this crossing it was admittedly common practice to park boxcars in proximity to the roadway, both east and west of the road on the 12 tracks and in ever-changing positions. This not only tended to hide oncoming trains from the view of the passing motorists but was also a violation of the railroad rules.

A few minutes before 2:00 a.m., on the night in question, the crew of No. 5628 had completed its work and were temporarily idle. The foreman of the crew then directed his engineer to proceed, along with one of his two switchmen, from his position 2000 feet west of the crossing, forward across Stanford Way, to switch onto a different track, and to return, necessarily in a backward motion, across the roadway to the middle of the switchyard in order to await further work assignments. Both the foreman and the switchmen were equipped with lanterns. None of these employees were told to or did position themselves at the Stanford Way crossing to warn motorists of the approaching engine.

At approximately 2:05 a.m., Robert Watkins, returning home from work, drove to the edge of the Stanford Way Crossing. At that time the night was dark, the moon had set, the skies were overcast and the temperature had dropped to 19 degrees. He stopped his pickup truck just north of the crossing and was facing south. He looked both right (west) and left (east). He observed boxcars parked on various tracks, on both sides of the crossing. After neither seeing nor hearing any evidence of an approaching train, he proceeded across the tracks in low gear. He cleared the boxcars located on the east side of the crossing and was then struck on the seventh track by locomotive 5628.

Watkins testified that he heard no warning sounds nor saw any lights, either headlights or warning lights, on the train. Although he had drunk two bottles of beer, there was no evidence of intoxication offered by the police officer who lifted him from the truck or the physician who treated him at the hospital. A witness called by respondent who was stopped on the south side of the crossing some 50 feet from the collision, testified that the window of her car was out and that while she listened, she heard no warning signals, whistles or bells but only the sound of the motor. She testified that she saw no warning lights. Another witness for respondent, who was also approximately 50 feet from the collision, testified that although he heard the sound of the engine's motor, he did not hear any audible warnings. He observed no light on the engine as he saw it strike the truck. He further testified that when he reached the engine immediately after the collision, the engine was very dark and without lights. In order to see, he stated that it was necessary for him to return to his car to get a flashlight.

On the other hand, the railroad crew testified that they heard the two longs and short and a long whistle required by law to be given at all crossings. A railroad foreman approximately 2000 feet from the collision testified he heard each whistle...