White v. Arizona Eastern Railroad Co.

• Decision Date: 06 October 1924
• Docket Number: Civil 2171
• Citation: 229 P. 101,26 Ariz. 590
• Parties: LAURA WHITE, Administrator of the Estate of WILLIAM R. WHITE, Deceased, Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation; UNION AUTO TRANSPORTATION COMPANY, a Corporation; LIGHTNING DELIVERY COMPANY, a Corporation, and J. A. HORTON, Appellees
• Court: Arizona Supreme Court

229 P. 101

26 Ariz. 590

LAURA WHITE, Administrator of the Estate of WILLIAM R. WHITE, Deceased, Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation; UNION AUTO TRANSPORTATION COMPANY, a Corporation; LIGHTNING DELIVERY COMPANY, a Corporation, and J. A. HORTON, Appellees

Civil No. 2171

Supreme Court of Arizona

October 6, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed.

Messrs Cox & Moore, for Appellant.

Mr Charles L. Rawlins and Mr. G. P. Bullard, for Appellee Arizona Eastern Railroad Company.

Mr Richard E. Sloan, Mr. C. R. Holton and Mr. Greig Scott, for Appellee Union Auto Transportation Company.

Messrs Clark & Clark, for Appellee Lightning Delivery Company.

Messrs. Barnum & Flanigan, for Appellee J. A. Norton.

OPINION

ROSS, J.

This is an action for damages for death. The facts necessary for a decision of the questions involved, taken from the complaint, are as follows: The plaintiff's intestate, a truck driver in the employ of the Union Auto Transportation Company, Lightning Delivery Company, and J. A. Horton, who together, it is alleged, were operating a freight stage line by means of gasoline trucks, was on July 27, 1922, driving one of said trucks when it and a locomotive engine belonging to the defendant Arizona Eastern Railroad Company, and moving on its track between Globe and Maimi at what is known as Kaiser Crossing, collided, almost instantly killing plaintiff's intestate. It is alleged the accident was caused by the negligence of the intestate's employers and the defendant railroad company in the following manner: That the truck deceased was driving was equipped and provided with insecure and insufficient brakes to enable deceased properly to control and stop same; that the condition of the brakes rendered truck unsafe for the purposes for which it was intended, and that previous to the accident the deceased's employers had negligently and oppressively required deceased to work continuously and long hours, without sufficient, or any, sleep or rest; that he was over-tired, and by reason thereof and because of the condition of brakes was unable to properly operate truck in the highly dangerous situation in which he was placed by the negligence of defendant railroad company; that there were green trees at or near the railroad crossing which partially obstructed the view of approaching locomotive, and that defendant railroad company's servants in charge of the locomotive failed to blow the whistle or to give any other adequate warning, and that by reason of such inadequate warning, the partial obstruction caused by the green trees, the tired and worn-out condition of deceased, and the insufficient and unsafe brakes on truck, there was a collision between the truck and the locomotive.

We will refer to the employers of the deceased as the "stage line" defendants in contradistinction to the railroad defendant. The three corporation defendants filed separate pleas in abatement, but in the same words, setting forth that the complaint showed on its face a misjoinder of parties defendant. Horton, the other defendant, raised the same question by demurrer. The demurrer and pleas were sustained, and the complaint dismissed. From the judgment of dismissal the appeal is taken.

The contention of appellant is that the facts set out in the complaint do not show a misjoinder of parties defendant, but on the contrary show that decedent came to his death by the joint or concurrent negligence of the "stage line" defendants (his employers) and the railroad company, and that therefore the defendants are jointly and severally responsible for the jury.

We think beyond question the complaint shows the accident in which deceased met his death was the result of two separate, distinct, and independent causes, one being a faulty brake and debilitated physical and mental condition, due to overwork and lack of sleep, for which his employers were responsible, and the other the negligence of the railroad company. These causes not only have different sources, but do not coincide in time or place. The act of omission of the "stage line" defendant's, as set forth in the complaint, antedates the accident some time. Their act consisted in turning over to a worn-out and exhausted employee the truck without sufficient brakes at a time prior to the collision, and in which act the other defendant (the railroad company) had and took no part, and could by no principle of law we are familiar with be responsible for. Likewise the "stage line" defendants could not be charged with the negligence of the railroad company in permitting its right of way at crossing to become obstructed by brush or trees, and in its failure to ring bell or adequately warn at crossing. These acts and omissions of duty were personal to the defendant railroad company and no one else. The negligences laid at the door of these separate defendants as the bases of a claim for damages sustained in the accident described were not current or joint, but separate, distinct, and independent of each other.

Because unconnected, unrelated acts of different persons or corporations accidentally or fortuitously may have influenced an injury and damage, it does not necessarily follow that such persons or corporations are joint tortfeasors. If A. beats C., and B., while C. is wounded and worn from such beating, acting independently of A., administers another beating to C., from which he dies, A. and B. are not joint tortfeasors and jointly liable for C's death, although C. might not have died had B. not beaten him. There must exist some community of purpose or wrong or fault to give rise to joint liability. This we think is the settled rule. To constitute a joint tort the wrong must be joint. A tort may be committed by one person or by several, but the tort is always single. The general rule on this point we think is very well...