Rehearing Denied Nov. 24, 1959.
[86 Ariz. 316] Charles Christakis, Phoenix, for appellant.
Evans, Kitchel & Jenckes, and Ralph J. Lester, Phoenix, for appellee.
WILLIAM W. NABOURS, Superior Court Judge.
On September 3, 1953, at approximately 1:30 o'clock in the morning, the plaintiff Frank Golfinos was driving his 1946 Ford automobile south on 27th Avenue in the vicinity of Phoenix, Maricopa County, Arizona. Approximately three-quarters to a mile south of West Van Buren Street, 27th Avenue intersects the tracks of the defendant involved. Plaintiff's automobile
collided with a boxcar of the defendant railroad company, standing or slowly moving [86 Ariz. 317] across 27th Avenue, resulting in injury to the plaintiff and the complete loss of the automobile. Suit was filed by the plaintiff against the defendant railroad company and it's engineer, Bill F. Camp.
Trial was held and at the close of the plaintiff's case, the defendants without presenting any testimony or evidence, announced that they rested and then moved for a Directed Verdict. The trial court granted defendants' motions and instructed the jury to return a verdict in favor of both defendants. After the order was made denying plaintiff's motions to set aside the verdict, for Judgment N. O. V. and for a new trial, plaintiff brought this appeal.
Appellant makes five assignments of error supported by nine propositions of law. These will not be considered individually as they are all to be determined upon the one question of whether the trial court was in error in directing a verdict for the defendants.
It was a very dark night, with no moon and no unusual atmospheric conditions. Plaintiff was familiar with the crossing, having lived in Phoenix for some twenty years and having passed over the crossing before. On approaching the crossing from the north the only warning sign present was the usual cross-arm sign, located approximately ten feet west of the road and about eight feet north of the railroad tracks, the center of the cross-arm being approximately ten feet above the ground. As the street approaches the railroad tracks, it goes up an incline, the railroad tracks being some three to four feet above the usual level of 27th Avenue on the north and on the south side of the tracks, the road descends approximately four to five feet where it again becomes level.
The plaintiff was driving between 25 and 30 mph and the train was moving at approximately one or one and one-half mph at the time of the collision. For several minutes prior to the impact the train had been sitting across the intersection, the engine being a few feet west of the intersection, and the seven bexcars it was connected to being to the east of the engine, the first boxcar actually sitting across the road. The facts further show that the road at that point was some 17 feet in width and the boxcar some 50 feet in length. The boxcars were of a dark russet color; the only lights burning were the headlamps of the engine, being located on both the front and back of the engine, and ground lights located on the side of the engine under the runningboard. There were no obstructions blocking the view of the crossing from the driver. The train had just started moving to the east when the collision occurred, the point of impact being on the first boxcar east of the engine and at a point two feet eight inches from the west edge of 27th Avenue.
[86 Ariz. 318] There were no indications of any skid marks on the road and the plaintiff testified that he never did see the boxcar until he struck it. There was testimony that showed because of the incline, the lights of an automobile would not strike the side of a boxcar until the automobile was within twenty-five feet of the train; other testimony, however, was to the effect that a train or boxcar would be visible from the highway for a distance of one hundred to three hundred feet, depending on what sort of a lookout the driver was keeping.
This Court has consistently held that the trial court is justified in directing a verdict only where the evidence is insufficient to support a contrary verdict or so weak that the Court would feel constrained to set aside such a verdict on a motion for a new trial. Casey v. Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662; Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201. In viewing the evidence to determine whether it is such that reasonable men might conclude the fact of negligence, such evidence must be viewed in a light most favorable to him who urges that it be submitted to the jury as against the party who urges that no jury question has been presented. Cope v.
Southern Pacific Co., 66 Ariz. 197, 185 P.2d 772; Southern Casualty Co. v. Hughes, 33 Ariz. 206, 263 P. 584; Western Truck Lines v. Du Vaull, 57 Ariz. 199, 112 P.2d 589; Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803. In the case of Cope v. Southern Pacific Co., supra [66 Ariz. 197, 185 P.2d 775], the court stated:
'A verdict will not be directed in a case where the evidence is conflicting or where on all the facts and circumstances proven there is room for fair and sensible men to differ in their conclusions.'
This Court in prior decisions discussed the very facts here in issue and laid down certain well-settled rules relating to the obligations of the railroads where their trains are blocking the highway while engaged in various operations. We said in the case of Atch ...