HERBERT WATSON, Administrator of the Estate of Victor Cortez, Deceased, Appellant,
SOUTHERN PACIFIC COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.
Judgment reversed and remanded.
Mr. A. C. Lockwood, Messrs. Cox & Cox, and Mr. Theodore G. McKesson, for Appellant.
Mr. Lawrence L. Howe, of San Francisco, California, for Appellee.
Stanford, J. McAlister, C. J., and Ross, J., concur.
[62 Ariz. 30] This appeal comes from the Superior Court of Maricopa County by the administrator of the estate of Victor Cortez from a judgment notwithstanding the verdict, the action having been brought by the administrator to recover damages for the death of Victor Cortez resulting from an injury sustained on April 22, 1941, while Cortez was employed by the Southern Pacific Company. Cortez, who was fifty-seven years of age, worked for said company off and on for approximately twenty-three years. Death followed said injury in the St. Joseph's Hospital in Phoenix on April 27, 1941.
[62 Ariz. 31] The case was tried before a jury, and the record shows that at the close of plaintiff's case appellee moved for an instructed verdict in its favor. The motion was denied, and at the close of all evidence the motion was renewed and again denied. A verdict of $ 12,500 was returned by the jury. Thereafter the appellee moved for judgment notwithstanding the verdict rendered, and that motion the trial court granted.
The duties of the deceased on that evening were to ice the locomotives and mail cars of defendant's passenger trains No. 43 (westbound), No. 2 (eastbound), and No. 5 (westbound), as they arrived in the depot at Phoenix, Arizona. He had nothing to do with the Pullman cars, chair cars or baggage cars.
At the scene of the accident, which was at what is generally called the "Union Station" at Phoenix, there are five through tracks running east and west lying south of the depot. They are called tracks Nos. 1, 2, 3, 4 and 5 and commencing with No. 1, first south of the depot, run consecutively to No. 5 to the south.
Train No. 5 on Track No. 3 (westbound) arrived at the station at 8:50 P. M., April 22nd, the coaches staying intact during its stay at the station. At 9:05 P. M., train No. 5 resumed its course westward. It is the claim of appellant that as train No. 5 pulled out Cortez had not finished his work and had to leave the train while it was moving; that in so doing he struck his head on some part of the train and seriously injured himself to the extent that he became semi-conscious and nauseated. Cortez had serviced the locomotive and mail cars on train No. 5 and was thereafter directed to go to one of the two spur tracks lying to the north of the five different tracks and lying also to the east of the depot, and assist in removing some sanitary cans from a private car upon a spur track. The distance from the west end of train No. 5 on track No. 3 to this particular private car [62 Ariz. 32] was approximately 900 feet. On his way back he motioned to the one who had directed him to do that work, and then he returned to the immediate place where he did his work on train No. 5.
Train No. 2 arrived next in the yard, coming from the west going east. Cortez had gone in the westerly direction in order to service the front end of train No. 43, which was due to arrive before train No 2. The engine, of course, on train No. 2 was at the east end of the depot tracks instead of the west end. Cortez was seen after he finished servicing the private car, sitting on a cement curb facing south near track No. 3, some minutes before train No. 2 arrived from the west. His body was found under the last car of train No. 2, and the coaches of that train were not disturbed ...