SOUTHERN PACIFIC RAILROAD CO., a corporation, and Southern Pacific Company, a corporation, Appellants,
Birdie MITCHELL, Appellee.
[80 Ariz. 53] Boyle, Bilby, Thompson & Shoenhair, by Harold C. Warnock and Richard B. Evans, Tucson, for appellants.
Barber, Lesher & Dees, Tucson, for appellee.
This action was brought by Birdie Mitchell (plaintiff-appellee), to recover damages for injuries arising as a result of a collision between an automobile, in which she was riding as a guest, and a backing train then owned and being used in switching operations by the defendant-appellant, Southern Pacific Company. The defendant-appellant, Southern Pacific Railroad Company, owns the right of way where the tracks are laid, and the Southern Pacific Company operates the trains. No question is here presented as to which one of the two corporate entities is liable, if a liability is found to exist. The parties will hereinafter[80 Ariz. 54] be referred to as plaintiff and defendants or the latter, at times, as the railroad company.
The case was tried to the court, sitting with a jury, upon the issues made by plaintiff's second amended complaint and the defendants' answer thereto. The complaint was in two counts. The first count alleged the defendants were negligent in the operation of a train. The second count alleged the defendants were negligent in the maintenance of a railroad crossing and in failing to have proper warnings at the crossing, as a result of which the collision occurred. The answer denied negligence, alleged that the accident in which the plaintiff was injured was the sole proximate result of the negligence of the driver of the automobile in which plaintiff was a passenger, and alleged that plaintiff was contributorily negligent.
A motion for a directed verdict in favor of defendants was made at the close of the plaintiff's evidence and renewed at the close of the entire case. These motions were denied. The jury returned verdicts for damages in favor of plaintiff in the sum of $35,000. Thereafter both defendants made motions for judgment notwithstanding the verdicts, and for a new trial, which were denied. This appeal was taken from the judgment entered upon the verdicts of the jury and from the order of the court denying defendants' motions for judgment n. o. v., and for a new trial.
There are nineteen assignments of error supported by some eight propositions of law, which we shall consider in such order as seems best. As we read their contentions, the defendants are first complaining because of the trial court's refusal to direct the jury to return a verdict in their favor or to render judgment n. o. v., for the reason that there was no competent evidence from which it could properly be inferred that the defendants were negligent in any respect or that any negligence on the part of either
of the defendants was a proximate cause of any injuries sustained by the plaintiff. Prejudicial error is also assigned in the denial of their motion for a new trial: (1) on the ground that the court had improperly given two of the instructions submitted by plaintiff and refused to give some fifteen instructions offered by defendants; (2) because of the misconduct of the bailiff and court reporter in a certain unauthorized contact with the jury during its deliberations, and (3) because the court permitted one of the verdicts to be amended after the jury had been discharged.
The evidence is not seriously in dispute but where there is a conflict we shall, in accordance with our well recognized rule, state the facts in a light most favorable to a sustaining of the judgment. Plaintiff's injuries had their origin in a collision between an automobile that was being driven west on East 17th Street, in Tucson, and a moving train operated by defendant Southern [80 Ariz. 55] Pacific Company, at the intersection of the railroad tracks which cross said street. The accident occurred in the early morning of May 23, 1953. Other than for darkness the visibility was clear and the weather good. The asphalt pavement on 17th Street was dry and forty feet in width at that point. There was a slight upgrade to the highway in the eastern approach to the crossing.
On the night in question, at about 3:25 a.m., a yard crew was engaged in switching and spotting industry cars. They were moving a train consisting of a diesel engine and three cars in a backward or 'pushing' operation at a speed of some four mph, in a southerly direction along the Nogales branch line toward the point where its tracks intersect the street at approximately right angles. At this speed the evidence showed trainmen could jump on or off the train without it stopping. The engine with its headlight facing north was at the most northerly end of the train movement; the most southerly car was a boxcar. Two of defendants' employees-Hamilton, the brakeman, and Tipton, the foreman of the yard crew-were standing on top of the leading boxcar, stationed slightly forward of the middle thereof. Each had a lighted electric lantern in his hand and was facing in an easterly direction along 17th Street as the train approached the crossing. With this type of train movement the engineer was wholly dependent upon signals from these men. According to the positive testimony of the men atop the car, as well as the other members of the crew who testified, the bell on the engine was ringing as the train approached the crossing and the engineer had first sounded a standard crossing warning on the air horn some 200 feet before reaching the intersection. As the leading boxcar neared the crossing the men on top thereof saw from one-half to one block east of the tracks the automobile in which plaintiff was a passenger coming toward them. Both employees just had time to wave their electric lanterns '8 or 10 times', 'violently', as stop signals to the oncoming car. When it became apparent to them that their signals were ineffective and the auto was not slowing down they signalled the engineer to stop the train, then crouched down and hung onto the top of the car. Immediately the engineer applied the brakes and the train was stopped with the front end of the leading boxcar extending slightly over the center line of the roadway. The automobile crashed into the side of this boxcar at a point six to ten feet behind the front of it-near the front wheels of said car-with such force that it caused the boxcar to rock. The train traveled only some seven or eight feet after the impact before stopping. This railroad car was an old one of a dark russet color, and there were no lights of any kind affixed to it. Warehouse buildings 54 feet distant from the track in question and less than 20 feet north of East 17th Street obscured the vision somewhat and prevented the engineer from seeing traffic on the street coming from the east. This also prevented the driver of the westbound[80 Ariz. 56] car from seeing the greater part of the train. The headlight from the engine was pointed in the opposite direction from the movement of the train, thus giving no visual warning of the approach of the boxcar which was being shoved backward into the crossing.
Plaintiff was a guest passenger in a Buick automobile owned and operated by Verdell Reese, sitting in the front seat between the
driver and the other passenger, William H. Reese, a brother of Verdell. The car had good brakes and lights and was otherwise in good mechanical condition. There is no contention that any of the occupants of the automobile were under the influence of intoxicants. While there was then no crossarm sign or any other warning device of any kind on the east side of the railroad crossing, or on the north side of 17th Street, yet both the driver and plaintiff knew of the existence of the railroad crossing in question, having been over it once or twice before. There was a standard black and white R.R. crossarm 19 feet west of the track in the opposite or southwest corner of the crossing. No trainman was on foot flagging the crossing, and there were no stationary lights of any kind illuminating the crossing. All occupants of the car gave negative testimony that they heard no warning signals of either a ringing bell or air horn signifying an approaching train. No other automobiles were on the street at that early hour in the morning. As the Reese car approached the crossing, plaintiff and W. H. Reese were engaged in conversation, while the driver was looking straight ahead down the street upon which they were traveling. None of the occupants saw the electric lanterns being waved by the trainmen. Of the people in the car W. H. Reese was the first to see the moving train when their car was some fifty-five to sixty feet away from the R.R. tracks. We quote from his testimony as to what happened:
'Q. And what was the first thing you saw? A. Well, just a reflection from a wheel. I couldn't make out what it was when I first seen it.
'Q. What did you do when you first saw the reflection? A. I just tried to make out what it was. So when I did find out what it was I hollered 'Train.'
'Q. Did you see the outline of the boxcar itself? A. Sure, I did.
'Q. And then you hollered, 'Train'? A. Right.
'Q. Then, what happened? A. He jammed the brakes-ka-boom.
'Q. You weren't able to stop? A. No.
'Q. Now how much-tell me this, where was the boxcar, where were the wheels that you saw the reflection on when you first saw them? A. They was on the inside of the street when I first seen them.
'Q. You mean inside the curb lines of the street? A. That is right.
[80 Ariz. 57] 'Q. When you first saw this boxcar where was it? A. When I first saw the boxcar?
'Q. I mean, when you first made out the outline of the boxcar. A. It was ...