Southern Pacific Co. v. Shults

• Citation: 37 Ariz. 142,290 P. 152
• Decision Date: 19 July 1930
• Docket Number: Civil 2839
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, and W. C. ALLEN, Appellants, v. A. SHULTS, Appellee
• Court: Supreme Court of Arizona

290 P. 152

37 Ariz. 142

SOUTHERN PACIFIC COMPANY, a Corporation, and W. C. ALLEN, Appellants, v. A. SHULTS, Appellee

Civil No. 2839

Supreme Court of Arizona

July 19, 1930

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Reversed and remanded.

Mr Francis M. Hartman, for Appellants.

Mr William H. Westover and Mr. William Forman, for Appellee.

OPINION

LAMSON, Superior Judge.

This is a railroad crossing case. The suit was instituted in the superior court of Yuma county, Arizona, by plaintiff, A Shults, against the Southern Pacific Company, a corporation and W. C. Allen, to recover damages for personal injuries in the sum of $15,000, hospital and medical services $500, and damages to automobile $350, growing out of a crossing accident between an automobile owned and driven by plaintiff and a west-bound passenger train of defendant, Southern Pacific Company. Defendant W. C. Allen was the engineer on said train, and the accident is alleged to have occurred near Wellton, Yuma county, Arizona, on April 16, 1928. In this opinion we will refer to the parties as they appear in the court below; that is, the appellants as defendants, the appellee as plaintiff.

Plaintiff in his complaint alleged that the crossing was dangerous; that there was no flagman at the crossing; the failure to blow the whistle or ring bell. Plaintiff further alleged that he, knowing the crossing to be dangerous, approached the same with great caution, stopping and listening for the whistle or bell, and, hearing neither, attempted to cross the track. Plaintiff did not allege that he looked to see whether any train was approaching before attempting to cross the track. Plaintiff also alleged that the proximate cause of the accident was the alleged failure to blow the whistle or ring the bell.

Each of the defendants filed separate answers containing general denials and the further pleas that the accident was caused solely, directly, immediately and proximately by the negligence and carelessness of plaintiff himself, and not by reason of any fault or negligence on the part of either of the defendants. The case was tried before the court and a jury, and, at the close of all of the evidence, the defendants filed separate motions for directed verdicts in their favor, which motions were denied by the court. The jury returned separate verdicts in favor of each of the defendants and against the plaintiff, and judgment was rendered in favor of the defendants on the verdicts.

Motion for new trial was duly made and granted by the court. This motion was made on various grounds, but did not include the ground that the verdict was not justified by the evidence. While the order of the lower court granting motion for a new trial does not disclose the reason or grounds on which it was granted, it is apparent from the record before us and from the briefs of counsel in the court below and in this court that the only question involved was that the court erred in giving the following instruction requested by defendants:

"However, you are instructed that the track of a railroad company is of itself a proclamation of danger to a traveler, and the engines and trains operating upon the railroad have the right of way over crossings as against travelers upon the highway. A traveler, therefore, must not only use his eyes and ears, look and listen in both directions, but must when about to cross the track, look and listen, and stop, if necessary, to see or hear, so as to make these acts reasonably effective. That is, it is the duty of such traveler upon the highway when approaching a railroad crossing to look and listen for an approaching engine and train thereon and thereover -- he must look where by looking he could see, and listen where by listening he could hear. If such looking or listening does or would warn him of the near approach of the engine and train being so operated upon the track of the railroad company, then it is his duty to keep off the track until the same has passed, and to go upon the track without looking or listening, or stopping, if necessary, to hear, is negligence, and if you believe from a preponderance of the evidence in this case that plaintiff was guilty of such negligence, your verdict must be for the defendant."

Appellant makes two assignments of error. (1) That the court erred in denying defendants' motions for directed verdicts at the close of all of the evidence; and (2) that the court erred in granting plaintiff's motion for a new trial.

We will take up assignment No. 2 first, because we think the question raised in that assignment decisive of the appeal.

Counsel for appellee insists that this instruction is not a correct statement of the law as it exists in Arizona, and relies chiefly on the case of Davis v. Boggs, 22 Ariz. 497, 199 P. 116, 122. In the opinion in that case this court said:

"We do not think that is can be affirmed as a matter of law that there is an absolute duty upon the driver of an automobile to stop, look, and listen in all cases before he attempts to cross a railroad track."

This is a very broad statement of the law applicable to all cases. We think it the duty of the court, upon proper request being made therefor, to instruct the jury as a matter of law as to the duty of one who is about to drive an automobile over a railroad track at an unguarded crossing, and as to what constitutes due care on the part of the driver, under all of the circumstances shown in the evidence in the particular case. Here the evidence shows that plaintiff was very familiar with the crossing, having crossed the same several times a day for a period of a year or more; that he knew it was dangerous; that he was in good health and in possession of all of his faculties; that the accident happened in broad daylight; that he relied upon not hearing the train or any signal, and took no further precautions for his own safety. We think the instruction complained of fairly states the duty of one approaching an unguarded crossing known to him to be dangerous under all of the circumstances shown in the evidence, and that it does not impose too great a burden upon the plaintiff, but only requires what an ordinarily prudent person would do under the same or similar circumstances.

In a recent case, Southern Pacific Co. et al. v. Fisher, 35 Ariz. 87, 274 P. 779, 783, this court quoted with approval from an Oregon case as follows:

"In Robinson v. Oregon-Washington R. & Nav. Co., 90 Or. 490, 176 P. 594, a railroad crossing case, the court makes the following very sensible, correct, and just observation on the duty of a traveler when approaching a railroad crossing:

"'If from a place of safety on his way, the traveler in control of the vehicle in which he is riding can obtain a view of the coming train, he must look upon the course of the train from that point, and this responsibility is constant until the danger is past; that is, until he is safely across the railway track. The duty is constant because the danger is incessant. Instead of being intermittent it grows as the traveler gets near the crossing and reaches its climax only as he actually crosses the track in his passage. This obligation he owes not only to himself, but also to those on the train, whether passengers or the laborers employed in its operation. He must not allow his selfish little convenience to override this duty so well grounded in common sense.

"'All the precedents make it incumbent upon the traveler both to look and listen. Neither of them can be eliminated, without its use is practically impossible. The law does not excuse him from exercising both of them, unless there is no reasonable opportunity for that purpose. There is quite as much reason for his stopping so he can see as for stopping so he can hear, if there be any zone of safety from...