Wolfswinkel v. Southern Pac. Co.

• Decision Date: 29 December 1956
• Docket Number: No. 6114,6114
• Citation: 81 Ariz. 302,305 P.2d 447
• Parties: Hattie WOLFSWINKEL, as Administratrix of the Estate of Clarence Wolfwinkel, Deceased, and Clifford L. Wolfswinkel, Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Lewis V. Trosper and George Klenner, Appellees.
• Court: Arizona Supreme Court

Page 447

305 P.2d 447

81 Ariz. 302

Hattie WOLFSWINKEL, as Administratrix of the Estate of Clarence Wolfwinkel, Deceased, and Clifford L. Wolfswinkel, Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Lewis V. Trosper and George Klenner, Appellees.

No. 6114.

Supreme Court of Arizona.

Dec. 29, 1956.

Laney & Laney and Roger W. Perry, Phoenix, for appellants.

Evans, Hull, Kitchel & Jenckes and Ralph J. Lester, Phoenix, for appellees.

PHELPS, Justice.

This is an appeal from a judgment following a jury verdict in favor of the defendants, Southern Pacific Company, Inc., and Lewis V. Trosper and George Klenner, employees of the Southern Pacafic Company, Inc., and from an order of the trial court denying plaintiffs' motion for new trial.

The plaintiff, Hattie Wolfswinkel, as administratrix of the estate of Clarence Wolfswinkel, deceased, brought this action against the above named defendants for damages for the alleged negligent killing, in a railroad crossing accident, of the decedent who was her husband. The plaintiff, Clifford L. Wolfswinkel, a son of the decedent, joined his cause of action in the same complaint, by which he sought to recover damages for injuries to his automobile which was driven by Clarence Wolfswinkel at the time of the fatal collision.

The collision occurred about 9:30 in the evening of May 10, 1953, at the place where Alma School Road crosses the Southern Pacific railroad tracks just outside the west city limits of the City of Mesa. The decedent was driving the automobile southward on Alma School Road toward the intersection, and the defendants' train consisting of an engine, two cars and a caboose, was proceeding westward toward the intersection where it struck the automobile on its left side, causing the death of Clarence Wolfswinkel, and substantial damage to the automobile.

The plaintiffs' complaint alleged general negligence, careless and wanton conduct in the operation of the defendants' train and specific negligence in that: (1) the defendants knowingly maintained an extrahazardous crossing and failed to maintain safety devices; (2) failed to cause a bell to ring or whistle to blow until such warning was too late; (3) operated the train at a greater rate of speed than was reasonable under the circumstances; (4) failed to use an efficient headlight; and (5) failed to keep a proper lookout and control of the locomotive.

The answers of the defendants denied any negligence on their part and pleaded that the collision was caused by the sole or contributory negligence of the decedent.

The trial jury answered special interrogatories to the effect that: (a) the defendants were guilty of negligence which was a proximate cause of the collision; (b) the decedent was guilty of negligence which contributed to cause the collision; and found in favor of the defendants on a general verdict.

This appeal presents nine important assignments of error. We will discuss the questions that arise thereunder in the order stated in plaintiff's brief.

In their first two assignments of error the plaintiffs contend that the trial court erred in giving defendants' requested Instruction No. 9, as modified. The critical part of that instruction (which follows a lengthy generalization of the duties of the plaintiff) is as follows:

'* * * You are instructed that if you find from a preponderance of the evidence that Clarence Wolfswinkel failed to exercise proper vigilance or failed to yield the right-of-way to the approaching train and that such failure contributed, however slightly, to the collision, then you must find Clarence Wolfswinkel to have been guilty of contributory negligence.'

The plaintiffs urge, among other things, that this instruction is defective and constitutes reversible error because it usurps the functions of the jury by declaring that the decedent is guilty of contributory negligence if it found that he failed to exercise proper vigilance or failed to yield the right-of-way, in that it violated Article XVIII, Section 5, of the Arizona Constitution, which provides:

'The defense of contributory negligence * * * shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.'

We agree with plaintiffs that the above quoted instruction is defective in that it directs the jury that it must find the decedent guilty of contributory negligence if it finds as a fact that there was a failure on the part of decedent to yield the right-of-way or to exercise proper vigilance which contributed to the collision. This is prohibited under the above provision of our Constitution. We have held in the following cases that under this provision the question of contributory negligence is a question of fact for the jury alone: Womack v. Preach, 63 Ariz. 390, 163 P.2d 280; Campbell v. English, 56 Ariz. 549, 110 P.2d 219; Herzberg v. White, 49 Ariz. 313, 66 P.2d 253; Dennis v. Stuckey, 37 Ariz. 299, 294 P. 276; Inspiration C. C. Co. v. Conwell, 21 Ariz. 480, 190 P. 88. It is reversible error for a trial court to instruct that certain facts, which contributed to an injury, constitute contributory negligence Varela v. Reid, 23 Ariz. 414, 204 P. 1017; which was approved in Zancanaro v. Hopper, 79 Ariz. 207, 286 P.2d 205.

In the Varela case we stated, 23 Ariz. at page 422, 204 P. at page 1020:

'We think that our constitutional provision was violated by the instructions given, in that the court thereby told the jury that the failure of the deceased to follow the rule of the defendant employer not to walk behind the beam did, as a matter of law, constitute negligence, which, if it resulted in the injury, would bar recovery. The issue so foreclosed was one that may have been determinative of the cause on its submission to the jury, and we cannot say that the instructions did not bring about the adverse verdict. The error was therefore substantial, and requires the reversal of the judgment.'

Defendants argue that this court has approved virtually the same instruction as No. 9 above in the earlier cases of Humphrey v. Atchison, T. & S. F. Ry. Co., 50 Ariz. 167, 70 P.2d 319, and Southern Pac. Co. v. Shults, 37 Ariz. 142, 290 P. 152. A review of those cases indicates that this is not correct. In the Humphrey case, supra, the jury was not instructed that certain facts constitute contributory negligence. The jury was merely instructed that in railroad crossing cases dangerous circumstances determine the degree of care and that 'proper vigilance' is required before going on the railroad tracks. In the Shults case, supra, the defense of contributory negligence was not pleaded and no instructions on this problem were submitted. The defendant did plead that the accident and injury was caused solely by the negligence and carelessness of plaintiff and that defendant was not at fault at all. The instructions referred to by the defendant defines the circumstances which give rise to a duty on the part of the plaintiff, who is charged with being the sole cause of the accident and injury.

Defendants further argue that even if we hold that Instruction No. 9 was defective that we should hold that plaintiffs' requested Instruction No. 6, qualifies and corrects it. We have carefully examined Instruction No. 6 and have unanimously concluded that it does not and cannot correct or cure the error complained of in Instruction No. 9.

We therefore hold that Instruction No. 9 violates Article XVIII, Section 5, of the Arizona Constitution, in that the trial court improperly instructed the jury that if they found certain facts to exist the plaintiff was guilty of contributory negligence. This incorrect statement of the law constitutes reversible error.

Since a new trial will be necessary we will review the record for clarification of the other questions that presumably will arise.

In assignment of error No. 3 plaintiffs contend that the trial court erred in giving defendants' requested Instruction No. 5, as follows:

'You are instructed that the statutes, and regulations of the State of Arizona did not require that defendant Southern Pacific Company maintain a watchman or flagman or automatic signals or gates at this railroad crossing.'

It is argued that the proof showed that this crossing was an extra-hazardous crossing, and that it was a question of fact for the jury to determine whether the railroad was negligent in not providing further warning. It is urged by plaintiff that the implication of this instruction is that the jury would assume that in the absence of a statutory requirement there was no legal duty to supply further warning at the crossing, and that the instruction influenced the jury in not finding negligence because of the lack of a statutory mandate requiring such precautions. It is our position that no such implication could arise where the court gave an instruction requested by plaintiff that:

'* * * the requirements of the statutes, and the regulations or lack of regulations of the Corporation Commission for warnings at railroad crossings merely prescribe the minimum of care.' (Emphasis supplied.)

In assignment of error No. 4 plaintiffs contend that the trial court erred in giving defendants' requested Instruction No. 7 as modified:

'You are instructed that the defendant Southern Pacific Company is not responsible for conditions created by others and not on its right-of-way. However, you may take these conditions into your consideration in determining the question of the presence or absence of negligence in connection with the manner in which this particular train was operated.'

Plaintiffs argue that the instruction is misleading in that there was no issue as to the responsibility for conditions surrounding the right-of-way, and that the real question is whether the defendants used that degree of care which reasonably prudent operators would have used under those conditions. This question was adversely determined against plaintiffs' contention in Southern Pacific...