R. E. CANION, Appellant,
SOUTHERN PACIFIC COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Messrs. Marks & Marks, for Appellant.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellee.
[52 Ariz. 247] LOCKWOOD,
R. E. Canion, hereinafter called plaintiff, brought suit against Southern Pacific Company, a corporation, hereinafter called defendant, for damages to a certain truck owned by plaintiff, caused by the alleged negligence of defendant. The case was tried to a jury, and both plaintiff and defendant presented evidence and rested. Thereafter, defendant moved for an instructed verdict in its favor, which motion the court granted, and judgment was duly rendered in favor of defendant.
The only question raised by the assignments of error is whether there was sufficient evidence in the case to justify the submitting of it to the jury. The testimony taken in the strongest manner in behalf of plaintiff, as it must be taken when a motion for a directed verdict in favor of defendant is granted, shows the following facts:
Plaintiff is a general contractor, operating his trucks under a contract carrier's permit issued by the Arizona Corporation Commission. For some time before the accident, he had a contract to deliver sand and gravel to a concrete mixer approximately 150 feet south of the tracks of defendant, near a crossing some 22 miles west of Phoenix. At the point of the crossing, defendant's tracks run east and west and are intersected by an ordinary dirt road running north and [52 Ariz. 248] south. Shortly before 11 o'clock on the evening of the 6th of March, 1936, plaintiff's son had driven a truck loaded with sand and gravel across the tracks at the crossing in safety, although he had heard the whistle of a train to the east and had observed its headlight some two miles away. In proceeding to the crossing over the dirt road this truck had raised and left behind it such a cloud of dust that the driver of a second truck, which is the subject of this suit, who was also proceeding southward to make a delivery to the mixer, was so enveloped in dust that at times he could not see more
than four or five feet ahead of him. This crossing was well known to the driver of the demolished truck, as he had previously made many trips over it to and from the mixer, and he knew that he was crossing defendant's main line, on which many trains traveled both day and night. Although as he neared the crossing he was enveloped in a heavy cloud of dust, he did not stop the truck to observe whether a train was approaching, but merely slowed down. Just north of the crossing he shifted into low gear, and at the same time he saw a light which he assumed was from the truck which had just preceded him over the crossing. As he drove on the track, he heard a whistle, and looking up, saw an engine about two hundred feet east of the crossing. Seeing the certainty of a collision, he abandoned his truck on the track and leaped to safety. The train was traveling between sixty-five and seventy miles an hour at the time it struck the truck and completely demolished it. There is no question as to the foregoing facts, but we leave certain disputed matters for discussion at a later portion of this opinion.
There are six things alleged in plaintiff's complaint which he claims were responsible for the accident. They are stated by plaintiff in his brief, as follows:
[52 Ariz. 249] "... the defendant...
"(1) Caused its train to approach the crossing at a dangerous rate of speed, to-wit: approximately sixty miles an hour.
"(2) Failed and omitted to keep its locomotive and train under proper control so that it could have stopped in time to avoid the collision.
"(3) Failed and omitted to keep a lookout for automobiles or trucks passing over said crossing.
"(4) Failed and omitted to ring the bell on said locomotive at a distance of not less than eighty rods from said crossing and up to said crossing, as ...