ATCHISON, T. & S. F. R. CO. et al.
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Fennemore, Craig, Allen & Bledsoe, of Phoenix, for appellants.
Wilson & Wilson, of Phoenix, for appellee.
Morgan, Judge. Stanford, C. J., and LaPrade, J., concurring.
[64 Ariz. 17] On April 6, 1943, during the noon hour, plaintiff was driving his automobile in a northerly direction on the public highway known as lateral 15, which at a point between Glendale and Phoenix intersects and crosses at an angle of 45 degrees defendant railway company's main line track and four parallel tracks immediately to the northeast, some of which are used for switching. In driving over the intersection, plaintiff's automobile was struck by the company's regular passenger train proceeding towards Phoenix on the main line, and he was seriously and permanently injured.
Plaintiff alleged that the proximate cause of the collision and resulting injuries was the negligence of defendants in the following particulars. Defendant Steyaert, a company brakeman engaged in switching cars at the intersection, and who had a clearer view of the main line track towards the north than plaintiff, signaled him to cross over, and plaintiff, relying upon the position of the brakeman and his ability to view the tracks, proceeded to cross. When plaintiff had reached and was driving over the main line track, the brakeman signaled him to back up. Obeying this instruction, plaintiff stopped, but before he could comply with the latter signal his automobile was struck by the on-coming passenger train which was then being operated by defendant Pentland, the engineer, at a high and excessive rate of speed, in excess of 60 miles per hour, "which speed was excessive by reason of the obstruction at said intersection and the traffic and use of said intersection at said time and place."
Plaintiff's claim of negligence is bottomed upon the concurring effects of the high and excessive speed of the train, the failure of defendant Pentland to slow the train, and the negligence of defendant Steyaert in signaling plaintiff to proceed into the intersection, and then when he had reached a place of danger to stop him from proceeding further.
Due to the effects of the injury, plaintiff has no recollection of the collision nor of anything that occurred immediately preceding or following the injury. The testimony was conflicting and unsatisfactory. However, there are some facts about which there is no controversy. At about the time plaintiff was driving up the incline to cross over the railroad tracks, Steyaert was engaged [64 Ariz. 18] with a switching crew in moving cars on the most northeasterly track. These cars were moved in such a manner as to leave the crossing unobstructed. Steyaert had a better view of the main line track than plaintiff could have had if the latter was still on the incline which led up to the tracks. Plaintiff was a truck driver by occupation, and an experienced driver.
The train operated by Pentland, regularly due in Phoenix in the morning, running on a revised schedule three minutes late, had passed Alhambra station, and was proceeding through an area congested by five tracks, a large number of railroad refrigerator cars, and storage and loading structures along the right of way. The range of vision of the engineer was not given, but he did not see plaintiff's car until he was about 600 feet from the point where the highway crosses the railroad. It is a much used highway, being the main artery of traffic to the largest factory operating in the vicinity. Rain was falling at the time. When the engineer saw plaintiff's automobile on the track, he immediately applied his brakes, this at a distance of about 500 feet from the point of collision. In addition to the engine and tender, there were seven coaches in the train, each 80 feet in length. It was not brought to a complete stop until the rear was approximately three car lengths beyond the crossing. The evidence discloses that from the time the engineer saw plaintiff's car and applied the brakes, the train traveled approximately a quarter of a mile before it was brought to a stop.
Plaintiff's case rests principally upon the testimony of the witness Hasse, as corroborated by the testimony of defendant Pentland and the fireman of Pentland's engine. Hasse's testimony taken in the light most favorable to plaintiff, discloses that just after the crossing had been opened by the switching crew, and at the time Steyaert dropped off the cars at the crossing, he saw plaintiff's car pulling up the incline. He saw the brakeman give a signal for the
car to come ahead, and when the car had approximately straddled the main line track, he saw the brakeman signal the car to go back; that it stopped on the track, but before it could be backed off it was struck by the train. He also testified that the train "was coming pretty fast". Hasse's testimony is not too clear but he did say that when the first come-on signal was given, plaintiff "was coming right up the incline. He was coming up the incline ...