White v. Arizona Eastern R. Co.

• Citation: 30 Ariz. 151,245 P. 270
• Decision Date: 19 April 1926
• Docket Number: Civil 2451
• Parties: LAURA WHITE, Administratrix of the Estate of WILLIAM R. WHITE, Deceased, Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellee
• Court: Supreme Court of Arizona

245 P. 270

30 Ariz. 151

LAURA WHITE, Administratrix of the Estate of WILLIAM R. WHITE, Deceased, Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellee

Civil No. 2451

Supreme Court of Arizona

April 19, 1926

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge.

Affirmed.

Messrs Cox & Moore, for Appellant.

Mr Charles L. Rawlins, for Appellee.

Ross J. McAlister, C. J., and Lockwood, J., concur.

OPINION

Ross, J.

This is the second time that this case has been before us. 26 Ariz. 590, 229 P. 101.

A collision between a truck, driven by the deceased, and an engine of the defendant railroad company, at a crossing of said company, forms the basis of this action. Such collision occurred on July 27, 1922. After the formal parts, including plaintiff's representative capacity, the cause of action is set out in the complaint as follows:

"The defendant negligently permitted green trees to grow at or near said crossing, which obstructed the view of trains approaching said crossing and for the reason plaintiff's intestate had his view obstructed when approaching said crossing, and the servants of defendant in charge of said locomotive negligently backed said locomotive on to said crossing without blowing the whistle of said locomotive and without giving other adequate warning of its approach to said crossing, and by reason of such inadequate warning and by reason of the view being obstructed as aforesaid by green trees, there was a collision between the truck being driven by plaintiff's intestate and the said locomotive, in which accident and collision plaintiff's intestate was killed. . . ."

In addition to a general denial the defendant alleged in its answer:

"That the injury, if any, resulting in the death of plaintiff's intestate, was caused solely and entirely by intestate's own negligence."

After plaintiff had closed her case the defendant made a motion for a directed verdict on several grounds, one of which was that the plaintiff had wholly failed to prove any act of negligence on defendant's part, and another that plaintiff had wholly failed to prove the negligence alleged; and the motion was granted. The granting of this motion and the ruling out of certain evidence are assigned as errors.

The evidence offered and admitted in support of plaintiff's case was to the following effect: The place where the accident occurred was at Kaiser's crossing, between Globe and Miami, about two miles from the latter and four miles from the former place. The railroad track approaches the highway at or near a right angle, and at that point has the general direction of north and south, while the highway's course is generally east and west, and both are, as we understand, on practically a level grade. Along the easterly approach of the highway were some poplar trees, planted and cared for by the Inspiration Copper Company, we assume to shade and ornament the highway. These trees were about ten feet from the paved part of the road (width not given), opposite to each other at a hundred feet apart along the highway, and the first ones were approximately twenty-five feet from the railroad track and off the right of way of defendant. The spread of the trees was from ten to fifteen feet, and their height fifteen feet. The deceased was familiar with the crossing, having driven a truck over it several times before. On this day, at noon, he was going west from the direction of Globe towards Miami, driving a large truck, and the engine with which he collided was proceeding north and towards Globe. The engine was backing and traveling about twenty miles an hour, and the truck was traveling about fifteen miles an hour. The only witness who testified to seeing the accident was about one hundred and fifty to one hundred and seventy-five yards up the railroad track, where the engine was moving, from the crossing. And he states that when he first saw the truck it was fifty feet or a little more from the track; that it showed no signs of slacking up, going about the same all the time until it ran into the engine; that he was in full view and could see the lower part of the truck plainly, but at times could not see the top when it passed the trees, but could see it coming. Using the witness' language:

"As this engine was approaching the crossing, we were also looking in that direction, there was a great big red truck, and we noticed they were getting closer together; then we noticed if one of them didn't stop there was sure to be an accident; then of course all of our attention was turned that direction, and just at that moment the engine got in the crossing, and the truck hit right about the cab, right about the center of the engine. The engine went on about 60 yards, and then stopped. . . ."

The witness' testimony as to signals is as follows:

"The crossing signal was not given by the engine at any time, except the bell, I would not be so sure about; I know the whistle was not sounded."

Witness saw a service car, containing seven people, stop on the Miami side of the track at the engine's approach. The weather conditions were not such as to interfere with one's sight or hearing.

After deceased cleared the trees (twenty-five feet from the track) it is unquestioned he had a clear...