SOUTHERN PAC. CO. et al.
Rehearing Denied Dec. 22, 1953.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[76 Ariz. 321] Knapp, Boyle, Bilby & Thompson, and Richard B. Evans, Tucson, Lawrence L. Howe, San Francisco, Cal., of counsel, for appellant Southern Pac. Co.
Paul J. Cella, Tucson, for appellant Eloy Ranch Co.
Bob Barber and Franklin E. Vaughan, Tucson, for appellee.
Suit by appellee Donald Bolen, acting through his father and next friend, herein referred to as plaintiff, against appellants Southern Pacific Company, a corporation, and Eloy Ranch Company, a corporation, hereinafter referred to as railroad and ranch company respectively, for personal injury because of the alleged negligence of defendants. Trial was had before a jury and verdict and judgment for $65,000 against defendants, both of which separately appeal.
The factual basis essential to a solution of the matter is substantially as follows: Defendant railroad owns and operates a railroad through the town of Eloy, Arizona, and owns station grounds adjacent to its right-of-way. Located on the property owned by railroad is a packing shed with a railroad spur track running alongside thereof. Defendant ranch company operated the packing shed. The agreements under which the packing shed and the spur track were operated are reflected in a lease from railroad of the property upon which the shed is located and an industrial track agreement whereby railroad agreed to operate the spur track for the purpose of serving ranch company. It is conceded that railroad under the lease and the industrial agreement retained the right to control the spur track and did not expressly give ranch company any permit to use the same for and on behalf of railroad. Railroad had no duties to perform in connection with the loading of the cars, but when requested by ranch company it would spot cars on the spur track and after loading would remove them therefrom. It seems that in the process of the loading operation ranch company after the cars had been spotted, without calling for assistance from railroad or without express authorization would move the cars by means of pinch bar or jack along the track. There was evidence from which a jury could find there was a pathway across the spur that residents living south thereof continually used in crossing to the north side or business section of the town; that on the day of the accident--May 1, 1945--about 7:30 or 7:45 p. m., two loaded cars were standing about four feet apart on the track at right angles to the alleged pathway; that while plaintiff was crossing between the cars a third car, which had been started in motion by means [76 Ariz. 322] of pinch bar by employees of ranch company, bumped into one of the standing cars forcing them together, as a result of which plaintiff sustained personal injuries, resulting in amputation of his right arm, the basis of this suit.
We will consider first the appeal of the railroad. Its first assignment of error is in effect that the court erred in denying its motion for a directed verdict for the reason that there was no evidence that it was guilty of any negligence that could have caused the accident and the resulting injury. It being conceded that no employee of railroad participated in the loading operation or in the movement of the car which was the contributing cause of plaintiff's injury, if railroad is liable it must be on the ground that it is responsible for the acts of the employees of ranch company in pinching the car down the spur.
There was evidence to the effect that the spur track was higher at the east end where it joined the main track than at the west where there was a dead end; that it had been customary for railroad in furnishing cars to ranch company to spot them at the east or higher end of the spur from where the ranch company would jack or pinch them down to the loading shed and, after loading by the same means, would start the cars in motion and they by their own momentum they would roll to the west or dead end where railroad would pick them up for shipment. Railroad's position is that this does not create a situation that would impose liability upon it for the negligent acts of ranch company in thus moving the cars along the spur. It is contended that the arrangement between railroad and ranch company is embodied in the lease and track agreement whereby railroad retains control of the spur and agrees to operate the same for the purpose of serving ranch company. Unquestionably such is the effect of the lease and agreement but a solution of the problem calls for a look beyond these written instruments. Railroad argues that because its agreement did not expressly permit defendant ranch company to use its tracks that we must accept for all legal purposes that no such permit existed. We do not think this position is dound. If the facts warrant, permission or license could be shown independent of the written agreements.
All parties agree that the general rule is that the owner of a railroad cannot by lease or agreement turn the operation thereof over to another and thereby avoid its obligation to the public for the proper and careful exercise of its franchise, and under such circumstances the owner of the road would be liable for the negligence of a lessee or licensee while operating the same. It cannot gain immunity by delegating the duties imposed upon it by its franchise. While conceding such to be the general rule, railroad urges that its application is limited to the operation of a railroad as such and is not applicable to the movement of cars on a spur track under the circumstances herein. [76 Ariz. 323] We believe the rule is not so limited nor do the cases submitted by railroad warrant such a conclusion. We have read them all and find none which we interpret as holding that where a railroad company by consent or acquiescence allows another to move cars upon its tracks it is not responsible for the manner of the movement. For illustration, the Texas case of Washington v. Texas & Ft. S. Ry. Co., 22 Tex.Civ.App. 189, 54 S.W. 1092, relied upon by railroad, involved an accident occurring as a result of a loading operating. Subsequently the Texas court was presented with a fact situation similar to that before us and applied the general rule of imposing liability upon the railroad company. Gulf, C. & S. F. Ry. Co. v. Bryant, 30 Tex.Civ.App. 4, 66 S.W. 804. Therein an instruction was approved which stated that if the railroad company through its employees knew the employees of the company moving the car were accustomed to making such movement in the manner therein described, the railroad company would be liable for injury resulting from the movement.
A somewhat similar situation arose in the case of Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 19 Ala.App. 643, 100 So. 72, 74. Therein the trial court found (apparently by inference) that by arrangement and consent between the defendants the railroad company would push the empties to a quarry for loading, and when loaded the quarry company would let them down the track to the main line where the railroad company picked them up. Damage resulted from the negligence of the quarry company's employees in the operation of moving the cars. The same contention was made there as here and the Alabama court said:
'* * *. This question turns upon (1) whether there is any evidence to support the legal inference that the use of the Louisville & Nashville car and track by the quarry company at the time of the accident was by agreement or permission of the defendant the Louisville & Nashville Railroad Company; * * *
'* * * There was evidence that this spur track was connected with the main line of the Louisville & Nashville Railroad Company; that its engines
operated over it in pushing cars up to the quarry; that the cars so loaded were 'let down' that is, permitted to run down grade by gravity, and turned over to the Louisville & Nashville Railroad for transportation; that the 'letting down' was done by the employees of the defendant quarry company and the 'pushing up' of the empties was done by engines bearing the initial and numbers of the Louisville & Nashville Railroad Company; that this was a continuing practice over this spur and was done openly. From these facts it would not require a very astute mind to arrive at the conclusion reached by the court in his findings.'
[76 Ariz. 324] We think the correct rule is that where a railroad company by consent permits or acquiesces in another's movement of its rolling stock upon tracks under its control, this amounts to the granting of an implied license for such movement, and the railroad company cannot under such circumstances enjoy immunity from the negligent acts of the implied licensee. Kansas in the early case of Smith v. Atchison, Topeka & Santa Fe Railroad Co., 25 Kan. 738, is to this effect. Railroad criticizes this case but it seems to be in harmony with the other jurisdictions which have been called upon to solve the problem. Certainly railroad is not responsible where one as a trespasser without permission of the company undertakes to move its rolling stock. Such was the situation in Gulf & S. I. R. Co. v. McLeod, 152 Miss. 9, 118 So. 347, relied upon by railroad. There was sufficient evidence in the case at bar to warrant an inference that railroad consented to the method of movement over a long period of time and thereby in effect granted license to use its track.
Since the case must be returned for a new trial for reasons hereinafter stated, if the evidence then submitted is in conflict on the question of implied license to move its rolling stock, or if the circumstances warrant one of two conclusions on the question, the matter should be submitted to the ...