Appeal from Superior Court, Pima County; Wm. G. Hall, Judge.
Krucker, Fowler & Dodd and Fred W. Fickett, all of Tucson, for appellant.
Knapp, Boyle & Thompson and Arthur Henderson, all of Tucson, for appellees.
La Prade, Judge. Stanford, C. J., and Morgan, J., concur.
La Prade, Judge.
[64 Ariz. 118] Appellant filed this suit to recover damages for personal injuries suffered by him by reason of the alleged negligence of the defendants. The individual defendants were the engineer, fireman, and switchmen in charge of the company's train at the time of the accident. At the close of plaintiff's case the court peremptorily instructed the jury to find for the defendants. The proof showed that the accident occurred in South Tucson, a few feet from the intersection of the company's tracks and South Sixth Avenue. This street is a heavily traveled arterial highway carrying traffic of two U. S. Highways and leading to Nogales and Bisbee. The surrounding area is moderately populated; tourist courts, bars, cafes, gasoline service stations, and stores are situated in all directions in the immediate vicinity. Two blocks to the west and southwest there are located the Arizona Children's Home and the Mission View Public School. The photographic [64 Ariz. 119] exhibits indicate that there is an area approximating the size of a city block that is vacant on the southwesterly side of the railroad tracks and immediately west of South Sixth Avenue. This area was covered with brush and desert flora indigenous to that territory. On the south and west side of this area there were numerous private dwellings. Leading in a southwesterly direction from the west curb of the street, a few feet north of the point where the company's track intersects it, there was a fairly well beaten footpath leading out into this vacant area. This footpath had been used continuously for many years by residents of the neighborhood as a short cut across the vacant block.
Fifteen feet north of the track, along the west curb of the street and directly opposite the path as it crossed the track, there was a bus stop where for many years passengers of two different bus lines had boarded and alighted. Also at this point the school buses stopped to discharge children who had habitually used the path for many years. The last daily bus was shown to go to this area about 11:45 p. m. The company had actual knowledge of the use of this pathway extending over its tracks by the residents of the neighborhood. This use was extensive, at least up until the hour of midnight. In a neighborhood as thickly populated as was this part of the city, it is not unreasonable to suppose that there might be isolated instances of foot travel on this pathway across the tracks by a few persons who might have occasion to be out well after midnight. If there was any use after midnight, it was not appreciable.
On the evening of April 24, 1941 (9 p. m. to 1 a. m.), appellant visited a bar called the Spanish well, located on the west side of Sixth Avenue, a distance of between three and four blocks north of his home and the railroad track. At one o'clock in the morning of April 25th, when the establishment closed, he walked south on the west side of the street, but not toward his home. A short while later, at a time when he was apparently attempting to cross the tracks at or near the pathway, he stumbled or voluntarily lay down in the middle of the track. In any event he was too inebriated to arise, and went to sleep, using the roadbed between the rails for a bed. The pathway across the tracks was about 23 feet from the curb of the street. The railroad track involved was used by the company approximately twice a week in its switching operations. At 1:38 a. m., the company's employees were pushing a tank car with a switch engine, moving southeasterly toward Sixth Avenue. The track down which the engine and car proceeded was straight for a long distance. The speed, up until a signal board located on the south side of the track about 130 feet west of the street was reached, was six miles per hour. After passing the signal board the engine slowed to one mile per hour. The headlight on the engine did not shine down the track, being obscured by reason of the fact that the tank car was [64 Ariz. 120] being pushed ahead of the engine. Four switchmen, as they approached the street, were riding on the footboard on the front end of the tank car. Three of them were equipped with electric lamps which were capable of throwing spot beams of light for 50 to 60 feet down the track ahead of them. There was testimony that the engine bell was ringing, and the engineer testified that he blew the whistle. One of the switchmen testified that no whistle was blown. The company's employees approached the street with the purpose of stopping the engine and car in order to go out upon the street and flag down automobile traffic before crossing the street. All four of the switchmen testified positively that they did not see the plaintiff until his body was under the end of the tank car. When they saw him, the stop signal was given and the engine and car were stopped immediately.
It is the contention of appellant that he was a licensee and that appellees owed him the duty as such. We will take cognizance of two of the assignments of error; namely, "The Court ignored the well-established rule applicable in such cases, that to look is to see" and "That the Court arbitrarily rejected the undisputed evidence that appellees had the last clear chance to avoid injuring appellant." With reference to the other assignments of error we concur in the contentions of appellant that the evidence fairly well discloses that he was lying in or partially in the pathway between the rails of the track. Before attempting to analyze the law applicable to the facts, the following principles of law must be taken into consideration. First, we must determine: Who is a licensee? We quote with approval the following accepted definition: " A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission." Restatement of the Law, Torts, vol. 2, § 330. A portion of the comment appearing in subsection (d) under this section reads as follows: "* * * So too, if there be a local custom for possessors of land to permit others to enter it for particular purposes, residents in that locality and others knowing of the custom are justified in regarding a particular possessor as conversant with it and, therefore, in construing his neglect to express his desire not to receive them as a sufficient manifestation of a willingness to admit them. Thus, if it be a custom in a particular town for owners of vacant land to permit persons to cut across it,
one doing so is a licensee unless by posted notice or otherwise the particular owner objects to the practice. Familiar intimacy may also justify the assumption of consent to such visits ...