R. L. BRYAN and Pauline Bryan, husband and wife, Appellants,
SOUTHERN PACIFIC COMPANY, a corporation; Rex Daniels, Alvin Richards and John Doe, Appellees.
[79 Ariz. 255] Herbert Mallamo, Phoenix, for appellants.
Evans, Hull, Kitchel & Jenckes, Ralph J. Lester, Phoenix, for appellees.
This action was initiated in the Superior Court of Maricopa County, Arizona, for the recovery of damages resulting from a collision between plaintiffs' automobile and a train under the control of the defendant[79 Ariz. 256] Southern Pacific Company. Trial resulted in a verdict in favor of defendants; from the judgment entered thereon and order denying motion for new trial, plaintiffs appeal.
Plaintiffs' first assignment of error is directed to the refusal of the trial court to instruct the jury on wanton negligence. Wanton negligence has been repeatedly defined by this court. Essentially it involves the creation of an unreasonable risk of bodily harm to another (simple negligence) together with a high degree of probability that substantial harm will result (wantonness). Southern Pacific Co. v. Baca, 77 Ariz. 173, 268 P.2d 968; Scott v. Scott, 75 Ariz. 116, 252 P.2d 571; Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325; Barry v. Southern Pacific Co., 64 Ariz. 116, 166 P.2d 825; Womack v. Preach, 63 Ariz. 390, 163 P.2d 280; Conchin v. El Paso & S.W. R. Co., 13 Ariz. 259, 108 P. 260, 28 L.R.A.,N.S., 88. One effect of wanton negligence is to bar the defense of contributory negligence. Womack v. Preach, supra; Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz 101, 166 P.2d 816; Southern Pacific R. Co. v. Svendsen, 13 Ariz. 111, 108 P. 262.
Much of the evidence is undisputed. On the night of the accident at approximately the hour of 1:00 A.M. the defendants were switching six freight cars described in the evidence as gondola cars. These cars were initially propelled eastward toward and across Seventh Street, a principal boulevard in the heart of the city of Phoenix, Arizona, by a switch engine which was detached and remained approximately four blocks to the west at Third Street. This operation is commonly known as a running or flying
switch. The engine's bell was not ringing nor was its whistle being sounded; there were neither lights nor a brakeman on the shunted cars. Eight lines of tracks intersected Seventh Street. The plaintiff Pauline Bryan was struck by the lead car after she had crossed four lines of tracks and was on the fifth. There is a wigwag device guarding the approach to the crossing which is operated by the presence of a locomotive or train at least a quarter of a mile from the crossing if the main line track is being used but, and as to this the evidence is somewhat uncertain, either it did not operate for trains making a reverse movement after having passed over the crossing or if it did operate, did not operate on the switching tracks until an approaching train was within thirty feet of the crossing. The plaintiff Pauline Bryan was familiar with the crossing and knew that a wigwag device was present to signal the approach of trains but seemingly was unfamiliar with the limitations of the device. In any event it was so placed as to be invisible to travelers after reaching the first line of tracks.
Practically since the advent of railroading the making of flying switches in populous areas without proper precautionary measures has been considered to be gross negligence. Brown v. New York Central [79 Ariz. 257] R. Co., 1865, 32 N.Y. 597; Illinois Central R. Co. v. Baches, 1870, 55 Ill. 379. Similar language to that in the leading case of Johnson v. Seaboard Airline Ry. Co., 163 N.C. 431, 79 S.E. 690, 696, Ann.Cas.1915B, 598, has frequently been used:
'* * * This court has recently declared, in Vaden v. North Carolina R. Co., 150 N.C. 700, 64 S.E. 762, that: 'Making 'flying switches' on the railway tracks and sidings running across and along the streets of populous towns is per se gross negligence, and has been so declared by all courts in this country and by text-writers generally. It is stated in one of the best known textbooks that the use of a running switch in a highway in the midst of a populous town or village is, of itself, 'an act of gross and criminal negligence on the part of the company"-citing Shearman and Redf. Neg. (3d Ed.) § 466; (citing cases) * * *.'
The law relative to the precise question presented herein has been correctly summarized as:
'* * * It has been held to be per se negligence for the employees of a railroad company to make a flying switch on railway tracks running across the street of a populous town, without signals or other warning to notify travelers of the danger, and some courts have said that such a practice is negligence so gross as to approach wilfulness or wantonness, in some cases overcoming the effect of contributory negligence. This is especially true where the corssing is a much-frequented one, * * *'. 44 Am.Jur., Railroads, Sec. 518, page 762.
And see the extended annotation in 151 A.L.R., commencing at page 9, on what conduct on the part of a railroad precludes the defense of contributory negligence.
We are unwilling to say that in every instance the making of flying switches across the streets of populous towns is per se wanton negligence, but we have no hesitation in saying that it can be so described if adequate means are not employed to protect the traveling public; particularly if made as the plaintiffs claim at night without lights, bells, whistle, brakemen, guards or adequate warning device. It seems to us that under such circumstances there is a high degree of probability that substantial harm will result.
In the present case there is a direct conflict in the testimony as to whether adequate means were employed to protect the traveling public. Plaintiff Pauline Bryan testified that no signal was given to her by anyone to warn of the passage of a train over the tracks. The defendants' testimony was that a switchman stood in the center of Seventh Street with an electric lantern for the purpose of signalling traffic and did signal in plaintiff's direction on her approach to the tracks. This court on appeal must assume the truth of plaintiffs'[79 Ariz. 258]
evidence that no signal was given to warn of the approach of a train.
'It is well settled that on appeal the court must assume that the jury, as the trier of the facts, accepted the view of the evidence most favorable to the winning party. This rule, however, does not apply in determining whether instructions should or should not have been given. We must assume that the jury might have believed the evidence upon which an instruction in favor of the losing party was predicated, and that if the correct instruction had been given 'the jury might have rendered a verdict in favor of the losing party.' O'Meara v. Swortfiguer, 191 Cal. 12, 214 P. 975, 976. The truth of the evidence or allegations tending to warrant the instruction offered will be assumed by the court on appeal. (Citing cases.)' Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240, 242, affirmed on rehearing 64 Ariz. 260, 169 P.2d 84.
We therefore hold that since it was possible for the jury to find that the defendants were wantonly negligent, the failure to give plaintiffs' requested instruction is reversible error.
The plaintiffs assign as error the refusal of the trial court to give their requested instruction nember three. This requested instruction was predicated on Regulation 103A of the Southern Pacific Company read into evidence without objection. The applicable portion of this regulation provides:
'Before kicking or dropping cars on public crossings not protected by a watchman or by gates a member of the crew must take watch at the crossing to afford protection to traffic while movement is being made.'
Plaintiffs excepted to the failure to give their instruction on the grounds that 'the regulation is for the safety of the traveling public' and urge in this court that such instruction was relevant to the issue of defendants' negligence. Defendants argue that the regulation has no bearing on a negligence action of this type and they quote extensively from Smellie v. Southern Pacific Co., 128 Cal.App. 567, 18 P.2d 97, 19 P.2d 982, to the effect that it was not admissible evidence against the defendants in the first instance. We first observe that Smellie v. Southern Pacific Co., supra, is an opinion of the District Court of Appeal, Third District, California. Approval of that portion of the opinion holding that the private operating rules of an employer are not admissible was withheld by the Supreme Court of California in denying a rehearing.
'Respondents' petition to have the above-entitled cause heard and determined by this court after judgment in the District Court of Appeal of the Third Appellate District is denied.
'Such denial, however, shall not be [79 Ariz. 259] construed as an approval by this court of that portion of the opinion of the District Court of Appeal which holds that admission of evidence of the rules adopted by the defendant for the government of its business was incompetent and prejudicial.' Smellie v. Southern Pacific Co., 128 Cal.App. 583, 19 P.2d 982.
That such evidence is admissible in California has now been settled beyond question:
'* * * The rule was properly admitted in evidence as bearing on the standard of care respondent thought appropriate to insure the safety of others at its track crossings. (2 Wigmore on Evidence (3d Ed.) § 282, p. 132; 3 Shearman & Redfield on Negligence, § 506, p. 1281,) While a violation of such rule would not constitute negligence per se, it would be a circumstance for the jury to consider on the issue of respondent's negligence. Gett v. pacific Gas & Electric Co., 192 Cal. 621, 625, 221 P. 376; Nelson v. Southern Pacific Co.,8 Cal.2d 648, 654, 67 P.2d 682; Simon v. City and County of San Francisco,79 Cal.App.2d 590, ...