Lаmbert KAUTENBURGER, Petitioner, v. SUPERIOR COURT OF PIMA COUNTY and Honorable Gordon Farley, Judge of the Superior Court of Pima County, Respondents.
No. 6896.
Supreme Court of Arizona.
Nov. 4, 1959.
345 P.2d 779
W. T. Holmes and Robert Morrison, Tucson, for petitioner.
Wade Church, Atty. Gen., Harry Ackerman, County Atty. of Pima County, by John Claborne, Deputy County Atty., H. Earl Rogge, Jr., Sp. Deputy County Atty., Tucson, for respondents.
PER CURIAM.
This is an original proceeding on an alternative writ of prohibition issuing out of this Court and is a companion case to Abbott v. Superior Court of Pima County, 86 Ariz. 309, 345 P.2d 776 (1959). The essential facts are the same and the issues present precisely the same questions. For the reasons stated therein and upon the conclusions reached in that case, the alternative writ of prohibition issued herein is hereby made peremptory, and it is so ordered.
NOTE: J. MERCER JOHNSON, Justice, being disqualified, Honorable R. C. STANFORD, Jr., Judge of the Superior Court, Maricopa County, was called in his stead and participated in the determination of this appeal.
Frank GOLFINOS, Appellant, v. SOUTHERN PACIFIC COMPANY, a Delaware Cоrporation, and Bill F. Camp, Appellees.
No. 6425.
Supreme Court of Arizona.
Nov. 5, 1959.
Rehearing Denied Nov. 24, 1959.
345 P.2d 780
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
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, plаintiff 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 сenter 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 apprоximately 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 оf the intersection, and the seven boxcars 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 headlamрs 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 оf the engine and at a point two feet eight inches from the west edge of 27th Avenue.
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 Atchison, T. & S. F. Ry. Co. v. Renfroe, 77 Ariz. 28, 266 P.2d 745, 748:
The correct answer is dependent upon the extent of the duty of the railroad to warn travelers of the presence of cars occupying an intersection under the circumstances here related. The test for defining the limits of this duty is provided by previous pronouncements of this court as requiring such notice of the presence of the track and the train as a reasonable prudent person would be expected to give under the particulаr circumstances. Doty v. Southern Pacific Co., 59 Ariz. 449, 129 P.2d 991; Cope v. Southern Pacific Co., 66 Ariz. 197, 185 P.2d 772. The Doty case goes further and enunciates the principle that what is required of a reasonably prudent person in
this class of cases is to give such warning under the existing circumstances as will create a condition wherein there is no reason to anticipate injury to a person using the highway with due care. If such warnings are given, the railroad‘s duty is fully performed and it cannot under such circumstances be held negligent. In other words, warnings need not be given beyond that which is necessary to protect travelers using the highway with due care under the circumstances then and there existing. Consequently, in the present case, if there existed such warnings that there was no reason to anticipate injuries to one using the highway with due care at that time and place, the defendant has met its full duty and cannot be held to be negligent.
The Court then found that the facts of the case left no question; as a matter of law the defendant had fulfilled its duty and was not negligent.
In the later case of Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827, 832, the Court again had the question of adequate wаrning before it and made this observation: That the common law standard of conduct applicable to a railroad company as to all persons in order to escape liability for injuries of another is to attain the status of a reasonable prudent person under the particular circumstances. The Mitchell case, perhaps, caused some misunderstanding as to the position the Court has taken in relation to the possible liability of a railroad in the so-called “blocked crossing” situation. It has resulted in the belief that under the “blocked crossing” situation there is never any liability so long as the railroad has met the minimum standards required by statute as relatеd to notice and warning devices required to show the presence of the crossing to the highway traveler.
While the Court is not in anyway indicating that it is reversing or setting aside the theory advanced in that case, or the cases cited in support thereof, it is of the opinion that the single fact that a railroad car was sitting across the highwаy creating the so-called “blocked crossing” situation, does not in itself automatically remove any question of negligence on the part of the railroad.
We reiterate the statements that have heretofore been set out in this opinion, as taken from prior cases, that each case must be determined upon its рarticular facts. As stated in the case of Southern Pacific Railroad Co. v. Mitchell, supra:
It is axiomatic that a railroad company owes to travelers on the highway the affirmative duty of due care in the maintenance and safeguarding of its crossings and in the operation of its trains thereon. What constitutes such
due care is measured in each instance by the facts of thе particular situation. It is the extent of that duty for which defendants are chargeable which is here at issue.
This reasoning is further supported by the recent decisions of other jurisdictions, in St. Louis, Southwestern Railway Co. of Texas v. Duffy, Tex.Civ.App., 308 S.W.2d 202; Budkiewicz v. Elgin, Joliet & Eastern Railway Co., Ind., 150 N.E.2d 897; Peagler v. Atlantic Coast Line R. Co., 234 S.C. 140, 107 S.E.2d 15.
Appellees in urging the correctness of the lower court‘s ruling, rely upon the decisions handed down in the cases of Doty v. Southern Pacific Co., supra; Cope v. Southern Pacific Co., supra, and Atchison, T. & S. F. Ry. Co. v. Renfroe, supra. A careful reading of those cases show that if there existed the required statutory warnings and that there was no reason to anticipate injuries to one using the highway with due care at that time and place, the railroad has met its duty and cannot be held negligent. However, each case must still be determined upon its own facts as we have poined out in this opinion.
A review оf the evidence in this case discloses a difference of opinion between the witnesses as to the conditions existing at the time of the accident. One witness stating that under the conditions then existing neither the cross-arm signal showing the presence of the crossing or the boxcar itself was visible until one was within twenty-five feet of the train. With such evidence having been presented we feel that it was error on the part of the trial court to hold as a matter of law that the defendants had fully fulfilled their duty and were not negligent. The facts being in dispute, it was a proper matter for the jury‘s determination.
It is unnecessary to determine any other matters set forth as assignments of error in view of the foregoing decision of the Court.
The judgment of the lower court is reversed and the case remanded for a new trial.
STRUCKMEYER and JOHNSON, JJ., concur.
Justice BERNSTEIN having been the trial judge, disqualified, and Honorable WILLIAM W. NABOURS of the Superior Court, Yuma County, was called to sit in his stead.
PHELPS, Chief Justice, and UDALL, Justice (dissenting).
We are of the opinion that on the record presented to it in this “blocked crossing” case, thе trial court properly directed a
It is the unquestioned law in this jurisdiction that there are three essential elements involved in every case of actionable negligence: “(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; (3) an injury proximately resulting to the plaintiff from such failure * * *.” Dungan v. Brandenberg, 72 Ariz. 47, 50, 230 P.2d 518, 521; City of Phoenix v. Lopez, 77 Ariz. 146, 268 P.2d 323; Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 272 P.2d 352. In the last two cases we quoted with approval another statement of the rule by the Maryland Court, viz.:
* * * In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury * * *.” West Virginia Cent. & P. Ry. Co. v. State, 96 Md. 652, 54 A. 669, 671, 61 L.R.A. 574 (1903).
We have searched the record in a vain effort to find precisely what duty it is claimed the defendant railroad company owed to plaintiff that was violated. Certainly the majority opinion throws no light upon this crucial question. Apparently the decision turns upon the conflict of evidence rule; we quote the only basis given for the reversal:
“A review of the evidence in this case discloses a difference of opinion between the witnesses as to the conditions existing at the time of the accident. One witness stating that under the conditions then existing neither the cross-arm signal showing the presence of the crossing or the box car itself was visible until one was within twenty-five feet of the train * * *”
It was then held that the facts being in dispute, it was a proper matter for the jury‘s determination. We submit that this is a most superficial analysis of the problem presented by the appeаl, as it wholly fails to come to grips with the essential elements of negligence, supra.
It should be noted that we are not dealing with a situation in which the train and automobile were simultaneously approaching the crossing, hence the matter of sufficient warning of the train‘s approach is not an issue. Attention, however, is called to the fact that the front and rear headlights on the locomotive were both on, as were also the ground lights, and it was the box car next to the locomotive that was struck broadside by plaintiff‘s automobile.
“It is almost universally held that usually, when the driver of an automobile runs into a train standing still across a highway, no recovery can be had by the driver fоr damages caused by the collision. But there is an exception to this rule. When the railroad company has failed to give such notice of the presence of the track and train as a reasonably prudent man would be expected to give under the particular circumstances, it is guilty of negligence and the question of liability is one for a jury. * * *”
The allegations of thе complaint in regard to negligence may be summarized as follows: after alleging generally that the collision was directly and proximately caused by the carelessness, recklessness, and wanton negligence of the defendants, it was specifically charged that there was wanton negligence in that (a) there was no illumination аt said crossing, (b) there were no signals or lights therein situated at said track to warn of the presence of said train, and (c) there was no guard stationed at the crossing. It is significant that the majority take no stock in these specific charges of negligence, doubtless because there is no statute or regulation making such a requirement of defendant. The crossarm sign was the only warning required by law to be placed at this crossing. As we said in Canion v. Southern Pacific Co., 52 Ariz. 245, 252, 80 P.2d 397, 400:
“There is no suggestion that there was any order or regulation of either the Interstate Commerce Commission, or the Arizona Corporation Commission, requiring a watchman or automatic signal to be maintained at the crossing in question, and unless therе is affirmative evidence showing that reasonable care would require such warning to be maintained, we think it was not negligence for the railroad company to fail to maintain a watchman or automatic signal at the crossing. The proper authorities have the power, in case they think a crossing is particularly dangerous, tо require special precaution to be taken by the railroad company at such crossing, but in the absence of a regulation to that effect, we think the failure of the company to guard a crossing in that manner is not, as a matter of law, negligence.”
Where the accident occurred is an old established crossing. Both thе highway and the railroad tracks are straight, and they cross at right angles, and, except for the slight incline, there is no obstruction of vision. It is conceded that the railroad cars used in the switching operation completely blocked the crossing and that a standard warning crossarm signal was in
The judgment of the trial court should be affirmed.
PHELPS, C. J., and UDALL, J., concur.