THERON HUMPHREY, a Minor, by His Guardian Ad Litem, M. E. HUMPHREY, Appellant,
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, E. V. JACKSON and W. F. HALLOWAY, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Messrs. Fennemore, Craig, Allen & Bledsoe, for Appellees.
[50 Ariz. 169] LOCKWOOD, J.
This is an appeal by Theron Humphrey, a minor, hereinafter called plaintiff, from a judgment in favor of the Atchison, Topeka and Santa Fe Railway Company, a corporation, hereinafter called defendant, and E. V Jackson and W. F. Halloway. The action arose out of a collision between a train owned and operated by the corporation defendant and an automobile in which plaintiff was riding at the time of the collision. There is no doubt as to the fact that plaintiff was seriously injured as a result of the collision, the question being as to who was legally responsible for the accident. The undisputed facts of the case are as follows:
The physical condition of the terrain at and near the scene of the accident is of vital importance in the case and may be
thus described: The corporation defendant and the Southern Pacific Company, which operates another line of railroad in the state of Arizona, [50 Ariz. 170] use a common station on Fourth Avenue in Phoenix. From that point their respective tracks run parallel in a westerly direction approximately to Eighteenth Avenue, when the defendant's line turns northwesterly towards Prescott, the Southern Pacific line continuing to the west. At the place where Eighteenth Avenue crosses both of these tracks, running north and south, the northerly rail of the Southern Pacific track is approximately 42 feet south of the southerly rail of defendant's track. On the easterly side of Eighteenth Avenue, just south of the Southern Pacific tracks, there is a frame building, with some outbuildings, and three tamarack trees standing in the yard. These buildings and trees tend to obstruct the view in an easterly direction of travelers going north on Eighteenth Avenue, until they reach a point approximately 80 feet south of the south rail of defendant's tracks. At this last point the visibility to the east is approximately 1100 feet. At the south rail of the Southern Pacific track, the visibility to the east is at least a quarter of a mile. In fact, unless there are trains or cars on the tracks, the Union Station (over half a mile to the east) may be seen from this point. Plaintiff, at the time of the accident on August 26, 1934, was a minor child of approximately thirteen years of age, living with his father at 517 South Eighteenth Avenue, in the city of Phoenix. His grandfather lived in the house immediately south, and at about 11:30 A.M. of the day of the accident plaintiff, a boy cousin, and his grandfather started north on Eighteenth Avenue for the purpose of getting some ice. They were in a model T Ford sedan, driven by the grandfather; plaintiff being seated on the eastern side of the sedan, with his cousin between him and his grandfather, the windows being open at the time. Train No. 4 of the defendant had left the Union Station about the same time, and was proceeding in a westerly direction at approximately 20 miles [50 Ariz. 171] per hour, so that the line of travel of the two moving bodies would intersect at the crossing of Eighteenth Avenue and defendant's tracks. According to the testimony of the plaintiff, his grandfather started out at a speed of from 12 to 16 miles per hour, and when he reached the Southern Pacific tracks practically came to a stop. He then started up at a speed no greater than that at which he had been going, and when the automobile had about reached the intersection, plaintiff noticed the train almost upon them. He had time for but one cry of warning when the collision occurred.
It is the claim of plaintiff that the accident was caused by the negligence of the engineer and fireman of defendant's train, in failing to ring a bell or blow a whistle as required by law when approaching the crossing of Eighteenth Avenue, and also that they did not, when they saw the automobile approaching, act as ordinarily prudent men under the circumstances should have acted.
It is the contention of defendant company that its employees did ring a bell, as required by law, and that they at all times acted as ordinarily prudent men under the circumstances should have acted. It was its further contention that plaintiff himself did not use the ordinary care required of one of his age and under his situation, in observing and giving warning of the approach of the train in question, and that the accident was due to the negligence of the driver of the car, or to that combined with plaintiff's contributory negligence.
The matter was tried to a jury which returned a verdict in favor of the defendants. Judgment was duly rendered thereon, and from such judgment this appeal is taken.
There are nine assignments of error which fall naturally into three groups. The first assigns error in the admission in evidence of Defendant's Exhibits 1, [50 Ariz. 172] 2, and 3, being three photographs of the scene of the accident, without the proper preliminary proof. Assignments 2 and 3 are to the effect that there was no evidence authorizing the submission to the jury of the issue of contributory negligence on the part of the plaintiff. Assignments 4 to 9 question the giving of certain instructions to the jury by the court.
We will consider the first assignment of error. Photographs of the scene of an accident are admitted in evidence for the purpose of making more clear to the jury testimony in regard to what occurred at the time of the accident. The general rule as to their admissibility is that if a photograph be a substantially correct reproduction of the scene of the accident, and if it will aid the jury in understanding the testimony, it should be admitted, and that its admissibility, both so far as it is in fact a true reproduction of the scene and whether it is practically instructive to ...