Hattie WOLFSWINKEL, as Administratrix of the Estate of Clarence Wolfwinkel, Deceased, and Clifford L. Wolfswinkel, Appellants,
SOUTHERN PACIFIC COMPANY, a corporation, Lewis V. Trosper and George Klenner, Appellees.
[81 Ariz. 304] Laney & Laney and Roger W. Perry, Phoenix, for appellants.
Evans, Hull, Kitchel & Jenckes and Ralph J. Lester, Phoenix, for appellees.
This is an appeal from a judgment following a jury verdict in favor of the defendants, Southern Pacific Company, Inc., and Lewis V. Trosper and George Klenner, employees of the Southern Pacafic Company, Inc., and from an order of the trial court denying plaintiffs' motion for new trial.
The plaintiff, Hattie Wolfswinkel, as administratrix of the estate of Clarence [81 Ariz. 305] Wolfswinkel, deceased, brought this action against the above named defendants for damages for the alleged negligent killing, in a railroad crossing accident, of the decedent who was her husband. The plaintiff, Clifford L. Wolfswinkel, a son of the decedent, joined his cause of action in the same complaint, by which he sought to recover damages for injuries to his automobile which was driven by Clarence Wolfswinkel at the time of the fatal collision.
The collision occurred about 9:30 in the evening of May 10, 1953, at the place where Alma School Road crosses the Southern Pacific railroad tracks just outside the west city limits of the City of Mesa. The decedent was driving the automobile southward on Alma School Road toward the intersection, and the defendants' train consisting of an engine, two cars and a caboose, was proceeding westward toward the intersection where it struck the automobile on its left side, causing the death of Clarence Wolfswinkel, and substantial damage to the automobile.
The plaintiffs' complaint alleged general negligence, careless and wanton conduct in the operation of the defendants' train and specific negligence in that: (1) the defendants knowingly maintained an extrahazardous crossing and failed to maintain safety devices; (2) failed to cause a bell to ring or whistle to blow until such warning was too late; (3) operated the train at a greater rate of speed than was reasonable under the circumstances; (4) failed to use an efficient headlight; and (5) failed to keep a proper lookout and control of the locomotive.
The answers of the defendants denied any negligence on their part and pleaded that the collision was caused by the sole or contributory negligence of the decedent.
The trial jury answered special interrogatories to the effect that: (a) the defendants were guilty of negligence which was a proximate cause of the collision; (b) the decedent was guilty of negligence which contributed to cause the collision; and found in favor of the defendants on a general verdict.
This appeal presents nine important assignments of error. We will discuss the questions that arise thereunder in the order stated in plaintiff's brief.
In their first two assignments of error the plaintiffs contend that the trial court erred in giving defendants' requested Instruction
No. 9, as modified. The critical part of that instruction (which follows a lengthy generalization of the duties of the plaintiff) is as follows:
'* * * You are instructed that if you find from a preponderance of the evidence that Clarence Wolfswinkel failed to exercise proper vigilance or failed to yield the right-of-way to the approaching train and that such failure [81 Ariz. 306] contributed, however slightly, to the collision, then you must find Clarence Wolfswinkel to have been guilty of contributory negligence.'
The plaintiffs urge, among other things, that this instruction is defective and constitutes reversible error because it usurps the functions of the jury by declaring that the decedent is guilty of contributory negligence if it found that he failed to exercise proper vigilance or failed to yield the right-of-way, in that it violated Article XVIII, Section 5, of the Arizona Constitution, which provides:
'The defense of contributory negligence * * * shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.'
We agree with plaintiffs that the above quoted instruction is defective in that it directs the jury that it must find the decedent guilty of contributory negligence if it finds as a fact that there was a failure on the part of decedent to yield the right-of-way or to exercise proper vigilance which contributed to the collision. This is prohibited under the above provision of our Constitution. We have held in the following cases that under this provision the question of contributory negligence is a question of fact for the jury alone: Womack v. Preach, 63 Ariz. 390, 163 P.2d 280; Campbell v. English, 56 Ariz. 549, 110 P.2d 219; Herzberg v. White, 49 Ariz. 313, 66 P.2d 253; Dennis v. Stuckey, 37 Ariz. 299, 294 P. 276; Inspiration C. C. Co. v. Conwell, 21 Ariz. 480, 190 P. 88. It is reversible error for a trial court to instruct that certain facts, which contributed to an injury, constitute contributory negligence Varela v. Reid, 23 Ariz. 414, 204 P. 1017; which was approved in Zancanaro v. Hopper, 79 Ariz. 207, 286 P.2d 205.
In the Varela case we stated, 23 Ariz. at page 422, 204 P. at page 1020:
'We think that our constitutional provision was violated by the instructions given, in that the court thereby told the jury that the failure of the deceased to follow the rule of the defendant employer not to walk behind the beam did, as a matter of law, constitute negligence, which, if it resulted in the injury, would bar recovery. The issue so foreclosed was one that may have been determinative of the cause on its submission to the jury, and we cannot say that the instructions ...