SOUTHERN PAC. CO.
BACA et al.
Rehearing Denied April 20, 1954.
[77 Ariz. 175] Evans, Hull, Kitchel & Jenckes, Norman S. Hull & Ralph J. Lester, Phoenix, for appellants.
William Burke, Tempe, for appellees.
PHELPS, Chief Justice.
This is an appeal from a judgment of the superior court in favor of plaintiffs-appellees and against defendants-appellants and from an order denying defendants' motion for judgment n. o. v. and motion for a new trial.
The plaintiffs were injured as a result of a collision between a truck traveling east on West Eighth Street in Tempe in which they were riding, and the Railroad's scheduled southbound freight train No. 370 at a point where the tracks of the Railroad cross West Eighth Street. The incident occurred at approximately 8:15 o'clock on the morning of October 18, 1951. Eighth Street is the only east-west street crossing the railroad tracks within the corporate limits of Tempe that is paved and consequently has the heaviest traffic of any of such east-west streets. The railroad through Tempe constitutes a mainline artery of traffic over which a goodly number of trains run every day. Where the railroad crosses West Eighth Street there are double tracks, one of which is the mainline and the other is a siding or passing track.
The Railroad, as a safety precaution, at some time previous to this occurrence (the records do not show when) had installed on each side of its tracks at their intersection with West Eighth Street, electric flashing lights and bell ringing signals which were in working condition and were working on the morning the colision occurred. The Railroad's passenger train No. 1 known as the Golden State Limited passed through Tempe northbound about 8:02 a. m. At that time there was standing on the passing track a northbound freight train, the rear end of the caboose of which was approximately 80 feet north of Eighth Street. This was beyond the electric contact points which were designed to activate the Eighth Street electric signals above described. These contact points were located approximately 50 feet from the Eighth Street crossing on the passing track but were several hundred feet distant from said crossing on the main line. The conductor of the northbound freight train which had pulled in on the siding for the Golden State Limited and the southbound freight train to pass, stated that it was his duty to see that the caboose had cleared the contact points before stopping the train and that the electric signals had ceased to operate when his train came to a stop, and that his train stopped on the [77 Ariz. 176] siding at 7:50 a. m. where it remained until 8:20 a. m. when it pulled out.
Gabriel Baca, Sr., was the driver of the truck in which he and his four children were riding at the time of the collision with defendant Railroad's train. He and his 15-year-old daughter who was seated on the front seat with him and a baby girl, testified that the electric signals maintained by the Railroad at the Eighth Street crossing were flashing and the bell ringing when they were at least a block away and continued to do so at all times up to and including the time he was struck by the engine of the Railroad's southbound freight train No. 370. They stated that
Baca drove his truck up to within 25 feet of the nearest railroad track and stopped and remained standing for about two minutes when one of four section men who were engaged in doing track and roadbed work at that point, signalled him ahead (the section men denied they signalled him ahead. One of them, Urias by name, testified he shouted at him to stop and tried to wave him down); that he proceeded to drive across the siding track and on to the mainline track at a speed of about four or five miles per hour; that he was struck by the engine of the freight train while on the mainline track. He stated that he did not see the engine of the freight train until it was within 40 feet of him, but Baca testified that the train was traveling at a speed of 35 to 40 mph; that he made this estimate during the split second that he saw the engine coming toward him.
Another witness working in the O'Malley Lumber Yard about 125 feet from the crossing testified that he paid no attention to the train until he heard the crash and when he looked around the engine was about 15 feet south of Eighth Street pushing the truck ahead of it at a speed he estimated at about 30 mph; that the train came to a stop about 15 feet north of Ninth Street which according to the evidence was approximately 500 feet south of Eighth Street. He could see pieces of the truck being strewn along the railroad tracks between Eighth and Ninth Streets. These are the only witnesses for plaintiffs who testified as to the speed of train No. 370. The engineers of both train No. 370 and the northbound freight standing on the siding at the time, testified that No. 370 was going from 15 to 20 mph. This was corroborated by the testimony of the fireman and the conductor on the northbound freight train. These witnesses all took particular note of its speed. Other witnesses not connected with defendant fixed the speed at about 20 mph.
The truck was totally destroyed and Gabriel Baca, Sr., suffered a broken back. His ten-year-old son Gabriel Baca, Jr., was killed and the three other children suffered minor injuries.
Gabriel Baca, Sr., and his wife Ida C. Baca, brought this action for damages for [77 Ariz. 177] injury to Gabriel Baca, Sr., and also on behalf of the estate of Gabriel Baca, Jr., deceased. Ida C. Baca joined in said action as guardian ad litem of Cecelia Baca, Regina Baca, and Amalia Baca, minor children of Gabriel Baca, Sr., and herself, to recover damages for injuries suffered by them as a result of said collision.
Plaintiffs allege that defendants were negligent in the operation of train No. 370 in that on said 18th day of October, it exceeded the speed limit of 20 mph through the town of Tempe; that the engineer did not blow the whistle or ring or cause to be rung the bell on said engine in approaching the crossing at West Eighth Street; that plaintiff Baca was signalled by one of the section hands then working on the road at said intersection to proceed across the railroad tracks and that the view of trains going south through said town was blocked by large trees and section houses west of the railroad siding and north of Eighth Street, all of which when considered together, amounted to grossly unreasonable, reckless and wanton negligence. Defendants denied all of the allegations of the complaint not expressly admitted and alleged as an affirmative defense that the collision was due solely to the negligence of Gabriel Baca, Sr., or contributed thereto by him, in carelessly and negligently driving upon the railroad tracks at a time and place of danger in complete disregard of the warnings and signals given by the Railroad, and others, of its tracks and of the approaching train, but that he failed to stop, look and listen or to take any precaution for the safety of himself and others. The case was tried to a jury and a verdict and judgment in the sum of $35,000 in favor of plaintiffs resulted.
Defendants assert that the court erred:
1. In refusing to grant its motion for a directed verdict at the close ...