APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and cause remanded with instructions.
Messrs. Knapp, Boyle & Thompson, for Appellant.
Messrs. Krucker & Fowler, for Appellee.
[54 Ariz. 181] LOCKWOOD, J.
William B. Buntin, hereinafter called plaintiff, brought suit against the Southern Pacific Company, hereinafter called defendant, to recover damages for personal injuries alleged by plaintiff to have been sustained as the result of negligence of defendant. The case was tried to a jury which rendered a verdict in favor of plaintiff, and thereafter this appeal was taken.
The second amended complaint, on which the case was tried, may be summarized as follows: The plaintiff was a traveler on a train operated by defendant, his destination being Tucson, Arizona. The train arrived in Tucson about 3:30 A.M. December 19th, and the defendant, instead of discharging him at the usual place where passengers alighted, discharged and set him down from the train at an undetermined distance west of the station platform, at a place which was not suitable, proper nor safe. No lights were maintained there, and plaintiff was not notified, when he was so discharged, of the location of the station. After being discharged, plaintiff began wandering around trying to find the station, and continued to search for [54 Ariz. 182] it for some time, and while he was so engaged, and without any warning signal being given by defendant, a switch engine operated by it struck plaintiff, by reason of which he was severely injured. Plaintiff further sets up that he
"was suffering from permanently impaired vision which amounted to almost total blindness in both eyes; that he was of the age of sixty-five and in a precarious and feeble state of health, all of which things the defendant, its agents and employees,
knew when they discharged him as a passenger."
The answer of the defendant is a general denial and an allegation that the plaintiff was guilty of contributory negligence.
If it is necessary in the further course of the opinion, we shall elaborate upon the pleadings, but this states substantially the issues at the time of the trial.
The evidence, considered in the strongest manner in favor of plaintiff, shows the following facts: At the time of the accident he was a retired physician, about sixty-five years of age, in somewhat infirm health. He was suffering from a progressive atrophy of the optic nerve and his sight was extremely poor, though he was able to distinguish light from darkness, and under a proper light could determine the outline of most near objects, but he was totally incapable of moving safely about in semi-darkness without assistance. The employees of defendant, who were on the train with plaintiff, noticed when he was about to get off the train that he seemed like a man who had just awakened from sleep, but none of them had any knowledge of his deficiency of vision, nor does the evidence show there was anything about his conduct which would lead them to believe that there was anything wrong with his eyesight, or that he was not able to care for himself as well as the ordinary man of that age. When the train reached Tucson, plaintiff was asleep. [54 Ariz. 183] No distinct announcement was made to the passengers in general, when the train stopped, that it had reached that city, and after a ten minutes wait it was about to resume progress. Just before it started the porter's attention was called to plaintiff by a passenger, and he was awakened. Before he could alight, the train started, but was stopped within less than two car lengths, and plaintiff was assisted to alight by the porter, a brakeman and the conductor. The train then proceeded on its way. Up to the time the train finally left, plaintiff had in no manner been injured. The place where he was put off from the train was less than two hundred feet from the place where it had stopped originally, the exact distance being nowhere shown by the testimony. At this place there was a hard gravel surface, which was commonly used by passers-by as a walk, lying between passenger tracks numbers 1 and 2, the latter being the closest to the station. In order to reach the main door of the station, it was necessary to step across track 2 and walk towards the east between four hundred fifty and five hundred feet along a regular walk, part graveled and part asphalt. For a time not less than ten nor more than thirty minutes after the train left, the space in front of and near the station was brilliantly lighted by flood lights, so that a man with normal eyesight would have no difficulty in seeing where the station was, and proceeding there without any danger to himself. At the end of this time, the flood lights in front of the station were turned off. The plaintiff, due to the condition of his eyesight, was not sure in which direction the station was, although he said that he did not see some high-up lights somewhere south of the railroad. He walked up and down between the tracks, occasionally sitting down on his suitcase to rest. Along about five or five-thirty in the morning a switch engine operated by defendant [54 Ariz. 184] was working on the tracks near the station. One of the brakemen noticed plaintiff in the space between tracks 1 and 2, and shortly thereafter the switch engine, which was coming east on track 2, struck plaintiff and knocked him to the ground, as a result of which he received the injuries complained of.
There are three assignments of error, but we think it necessary to consider only subdivision (b) of the second assignment, which is that the court erred in giving the following instruction to the jury:
"If you believe from the preponderance of the evidence in this case that Doctor Buntin was suffering from some physical disability, such as blindness, feebleness, or any other condition, and if you further believe that the employees of the railroad company at the time that they discharged him as a passenger at Tucson had known, or by the use of ordinary care should have known, of such disability, then I charged you that the railroad company's employees were under the duty to assist Doctor Buntin and warn him when he was discharged, and if such ...