COPE et ux.
SOUTHERN PAC. CO. et al
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Judgment directing verdict for the Southern Pacific Company and James E. Smith affirmed, and judgment directing verdict for Warren Jarvis reversed, and cause as to him remanded for a new trial.
Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for appellants.
Evans, Hull, Kitchell, Ryley & Jenckes and Norman S. Hull, all of Phoenix, for appellees.
LaPrade, Justice. Stanford, C. J., and Udall, J., concur.
[66 Ariz. 198] Appellants brought suit for the wrongful death of their eighteen-year-old daughter. The complaint among other things alleged that the Southern Pacific Company maintained and operated certain railroad tracks and lines in Maricopa County and specifically referred to its tracks across what is commonly known as Baseline Road, a public highway. In referring to the crossing where the death occurred, the specific allegations are: "* * * which crossing was negligently constructed and maintained by the said defendant, Southern Pacific Company, so that the said crossing constituted a hidden trap and a danger to persons operating automobiles crossing said track * * *."
There is this additional allegation of negligence: "* * * as the train approached and entered the said crossing, the defendant James E. Smith (engineer) negligently failed to give warning signals of the approach at the crossing."
After both sides had submitted their evidence the court granted a motion for a directed verdict in favor of defendant Southern Pacific Company. At this time the court also denied a motion that had earlier been made by plaintiffs to amend their complaint to conform to the proof on the issue of the Southern Pacific's negligence in maintaining a hidden trap, the ruling on which motion had been taken under advisement and reserved. Plaintiffs' motion [66 Ariz. 199] for a new trial did not complain of this ruling of the court in refusing the trial amendment to the pleadings, nor has the ruling in this respect been assigned as an error in this court; hence, under our rules is not here for review. This appeal is from the judgment entered on the directed verdict and the denial of plaintiffs' motion for a new trial.
Ozell Cope, age 18 years, was killed in a collision between an automobile driven by a young man, Warren Jarvis, in which she was riding, and a freight train of defendant Southern Pacific Company, on which defendant Smith was engineer. The collision occurred at 9:45 p.m. January 9, 1942, at the railway crossing over Baseline Road two miles south of Mesa. Jarvis, Miss Cope, and Leland Watkins, all in the front seat, were driving westerly on Baseline Road, and the train was moving in a southerly direction. The automobile ran into the side of the train, and more particularly into the rear end of the 46th car and the front end of the 47th car behind the locomotive. The impact was so severe as to cause the instantaneous death of Miss Cope and Mr. Watkins, and to result in almost total destruction of the automobile.
The highway was straight and was crossed at right angles by two sets of somewhat parallel railroad tracks. The easterly tracks are designated as the Christmas Branch, and the westerly tracks, on which the train was moving, are designated as the main line. The distance between the center lines of the two sets of tracks on the north lane of the highway was 135 feet.
Jarvis had driven over the crossing in the opposite direction about one-half hour earlier in the evening, but he testified that at the time of the accident he was not aware that he was approaching the crossing, and was not looking for a crossing or a train as he approached at an admitted speed of not less than 40 miles per hour, which speed he maintained until he applied his brakes.
When Jarvis drove onto the tracks of the Christmas Branch he saw the train for the first time. He applied his foot brakes immediately and forcibly, but was unable to stop the automobile, which skidded 125 feet into the sides of the freight cars. The night was dark and somewhat cloudy; some rain may have fallen. No dust, smoke, or atmospheric condition interfered with Jarvis' vision, and his eyesight was good. The brakes on the automobile were in good condition. The headlights were on, but Jarvis could not state whether they were on bright or dim. The paved portion of the highway was 16 feet in width. The crossing was marked by two white-painted standard crossarm signs, one near the main-line track and on the south side of the highway, the other near the Christmas line and on the north side of the highway. In addition to these two standard crossarm signs there were two tall white-painted signal towers 30 feet north of the highway, [66 Ariz. 200] one approximately five feet south of the south rail of the main line and the other about the same distance north of the north rail of the main line. The main-line tracks were 3 1/2 inches lower than the Christmas Branch tracks, and the highest point between them was five inches above the main line and six inches above the ...