Petition — Southern Pacific Transportation Co. v. Lueck

Supreme Court brief1976

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Supreme Court, U. &

FiLED

FEB 17 i976

IN THE

Supreme Court of the Ul

JANUARY TERM, 1976

MICHAEL fi)

wi. ' —

No. 75-1 168

SOUTHERN PaciFic TRANSPORTATION COMPANY,

Petitioner,

MELANIE LUECK, Respondent

PETITION FOR A WRIT OF CERTIORARI

HaroLtp C. WARNOCK

RicHarp M. Bry

Barry M. Davis

Valley National Bldg.

Tucson, Arizona 85701

Attorneys for Petitioner

Of Counsel:

Brpy, THOMPSON, SHOENHAIR &

Warnock, P.C.

Valley National Building

Tucson, Arizona 85701

Press oF Byron S. ADAMs PRINTING, INC., WASHINGTON, D. C.

INDEX

Page

EE Ls Uctccns cesnddenseesiscvesvsveneses 1

PE cha cCakk ccs sa nehukncsbusecéedevenend ws a 2

PE oii ccwbioeneieesctces cevevccoue n 2

Constitutional Provisions Involved ..............+.. 3

ee dee ices cétncncecddecne 4

Reasons for Granting the Writ .................... 10

1. The Decision Belsw Has Promulgated the Doc-

trine, Heretofore Foreign to the Common Law

of the United States, That an Appellate Court

Need Not Review the Record Prior to Render-

Be I nbs 6d ds paccdacceeresdcsue 10

2. The Supreme Court of Arizona’s Refusal To

Hear Oral Arguments, Once Properly Re-

quested, and Striking Petitioner’s Only Brief

on the Merits Filed With the Court Denied

Petitioner of Procedural Due Process ........ 11

3. The Laws of the United States and the State

of Arizona Are Contrary to the Arizona Su-

preme Court’s Conclusion That the “Size,

Wealth, and Available Staff of the Petitioner

Are Proper Considerations in Determining

Whether It Exercised Due Diligence in Pre-

senting the Newly Discovered Evidence Which

Proved That Respondent Presented an Impos-

tor at Trial; Moreover, Failure To Allow the

Taking of Relevant Depositions Precluded Pe-

titioner From Demonstrating Its Exercise of

Pe EE Sa cclecsavkvestceseceieusesecae 14

il Index Continued

Page

4. Sustaining a Jury Verdict Predicated Upon

Perjured Testimony Perverts the Jury System

and Effectively Thrusts the Burden of Discov-

ering the Authenticity of a Witness Upon the

Adverse Party Thereby Depriving the Adverse

Party of His Right to Jury Trial and Due

Pe Gr OO sedi eu win eanedesusteenues 15

ln es ohn CRN Os kee eae 19

PT oon 0.006 hovcess 6adnceetetencssecesesccss la

CITATIONS

CasEs:

Barton v. Plaisted, 109 N.H. 428, 250 A.2d 642...16, 17, 18

Batt v. State, 28 Utah 2d 417, 503 P.2d 855 .......... 17

Dandridge v. William, 397 U.S. 471 ................ 14

Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519 ..... 17

Freeman v. Jergins, 125 Cal.App.2d 536, 271 P.2d 210 16

Gardner v. California, 393 U.S. 367 ................ 11

Gasoline Products Co. v. Champlin Refining Co., 283

Dee GE Ciiveciedneueucadel cuéuencevassdeneene 17

Goldberg v. Kelly, 397 U.S. 254 ..............00.:. 11, 14

Harris v. Thompson, 18 Ariz. App. 154, 500 P.2d 1142 18

Johnson v. Robinson, 415 U.S. 361 ................. 15

De GW, Ge, Dee Ws GD bok cc dcanwievedeccser 18

Robinson v. Herring, 75 Ariz. 166, 253 P.2d 347 ...... 10

Rosenberg v. Baum, 153 F.2d 10 (10th Cir.) ......... 11

Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732 (3rd

AS stv cdiloho Geka sdebss shes es awebeaseean rs 14

San Antonio School Dist. v. Rodriques, 411 U.S. 1. 14

Turner v. Pouce, 306 U.S, B66 2... cn ccccccccccccess 15

U.S. v. Mills, 21 F. Supp. 616 (E.D. Penn.) .......... 10

Valley Transp. System v. Reinarty, 67 Ariz. 380, 197

i re eerie eC Ud cwENe baeh be Ooh Oe 18

Walters v. St. Louis, 347 U.S. 231 2... cece cence 14

MISCELLANEOUS:

et EME oS dig skp aka se Geen eonteNeceae pe 16

i i i ee ie bed baesbacansooel 12-13

IN THE

Supreme Court of the United States

JANUARY TERM, 1976

No.

SOUTHERN PaciFric TRANSPORTATION COMPANY,

Petitioner,

MELANIE LUECK, Respondent

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Southern Pacific Transportation

Company, respectfully requests that a writ of certi-

orari issue to review the judgment and opinion of

the Supreme Court of Arizona entered in this pro-

ceeding on November 18, 1975.

OPINION BELOW

The opinion of the Arizona Court of Appeals is

reported at 22 Ariz. App. 90, 523 P.2d 1327 (1971).

The opinion of the Supreme Court of Arizona, vacat-

ing the court of appeals opinion, is reported at 11]

Ariz. 560, 535 P.2d 599 (1975). The supplemental

opinion of the Arizona Supreme Court is unreported.

JURISDICTION

The Supreme Court of Arizona, in its first decision,

determined all issues before it except petitioner’s mo-

tion for new trial, which was remanded to the trial

court for an evidentiary hearing on issues regarding

respondent’s production of an expert witness who

committed perjury at trial. A timely motion for re-

hearing, addressed to all issues decided by the court

in its first opinion, was denied on June 3, 1975 and the

memorandum in support of the motion was stricken

from the record.

The mandated hearing was held on June 26, 1975

and the trial court decision rendered on August 8,

1975. Pursuant to procedures established by the Ari-

zona Supreme Court, petitioner timely filed its objec-

tions to the findings of the trial court.

The Supreme Court of Arizona, after oral argu-

ments were requested and denied, issued a supple-

mental opinion on October 7, 1975. A timely motion

for rehearing was denied on November 18, 1975, and

this petition for certiorari was filed within 90 days

of that date.

_ This Cour ’s jurisdiction is invoked under 28 U.S.C.

§ 1257(3).

QUESTIONS PRESENTED

1. Whether the Supreme Court of Arizona’s re-

fusal to consider or review the record of a trial court

proceeding, held pursuant to its own mandate and

directed to essential issues in controversy, denied peti-

tioner its constitutional right to a meaningful appeal

and due process of law?

2. Whether the Supreme Court of Arizona denied

petitioner procedural due process by refusing it the

rizht to argue its position orally at any stage subse-

quent to the decision rendered in its favor by the

Arizona Court of Appeals and by striking the only

brief on the merits filed by petitioner with the Su-

preme Court?

3. Whether the Supreme Court of Arizona’s

classification of petitioner according to its wealth,

measured in terms of legal staff, police officers and

investigators available to it, for the purpose of ascer-

taining whether due diligence was exercised in dis-

covering that the respondent’s reconstruction expert

was an impostor, and failure to allow the taking of

relevant depositions denied petitioner of equal pro-

tection and due process of law?

4. Whether petitioner was denied substantive due

process by the Supreme Court of Arizona’s decision

that the burden of discovering that an expert witness

is an impostor rests on the adverse party and that a

jury verdict premised on perjured testimony is not in-

herently of such character to give reasonable assurance

that upon retrial a different result would ensue?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution Amendment XIV, § 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

This wrongful death action was instituted by the

widow of William T. Lueck for his death which oc-

curred when the motor vehicle he was driving collided

with petitioner’s train.

The respondent presented a reconstruction expert,

Mr. Allen W. Dickinson.’ The witness testified that:

he held both B.A. and M.A. degrees from Cambridge

University, Cambridge, England as well as a fellow-

ship in dynamics; he was a member of the Comet

Investigation Committee; he had published an article

with the English Government entitled ‘‘Fatigue Fail-

ure on the Comet Airplane’’; he was a member of the

VonBraun aerospace team; he was employed by

Mitchell Engineering; and, he was employed by Har-

vey Aluminum. Mr. Dickinson, the sole accident re-

construction expert presented by respondent, testified

that the Southern Pacific train, according to his eal-

culations, was traveling at speeds up to 70 m.p.h. at

the time of the collision; this is 10 m.p.h. in excess

of the lawful maximum speed set by the city of

Willeox.

: Although this controversy had been pending for six years, the

expert witness was produced by the respondent only six weeks

before trial.

—

The jury returned a verdict in favor of respondent

amounting to $3,080,000; $2,000,000 compensatory

damages and $1,080,000 punitive damages.*

On appeal, the Arizona State Court of Appeals

reversed the trial court and remanded for a new

trial. The intermediate court held that an instruction

on gross or wilful and wanton negligence was unsup-

ported by the evidence and erroneously given.

Respondent, on October 8, 1974, filed a petition for

review and requested

‘‘pursuant te Supreme Court Rules 4, 6 and 25,

oral argument on the above entitled matter.”

This request was denied.

While this controversy was pending before the Su-

preme Court of Arizona, the petitioner discovered that

the respondent’s reconstruction expert, Allen W.

Dickinson, was an impostor. The perjurer had not

received degrees from Cambridge University and, at

trial, had perjured himself as to his qualifications,

past employments, and professional associations. This

was immediately brought to the attention of counsel

for respondent and subsequently, a request to supple-

ment the record on appeal was filed with the Arizona

Supreme Court.

2This award was predicated upon evidence which reflected the

following net income of the decedent:

1961 1,676.87

1962 4,417.57

1963 5,834.37

1964 1,121.61

1965 (12,347.38) loss

1966 (489.95) loss

The Supreme Court of Arizona, reversed the appel-

lave court decision, and affirmed the judgment of the

trial court. It reserved ruling on petitioner’s motion

for new trial, which was based upon the discovery of

the expert’s perjured testimony, and ordered the trial

court to hold a hearing to determine

‘‘pnursuant to Rule 60(c), whether the asserted

newly discovered evidence could not have been

discovered by due diligence in time to move for

a new trial under Rule 59(d), 16 A.R.S., and

whether it is of such a character as to give rea-

sonable assurance that it will work a different

result upon retrial.’? So. Pac. Transp. Co. Vv.

Lueck, 111 Ariz. 560, 577, 535 P.2d 599, 615-16.

On June 26, 1975 the trial court held the mandated

hearing. Three witnesses were sworn and one hundred

pages of testimony recorded. The trial court, in its

‘**Report and Decision’’, stated that

‘the railroad company had numerous special

agents, police officers and a large legal staff in its

employ for the purpose of investigating the facts

of all cases, and had unusual facilities for dis-

covering the truth and the real facts and for pre-

paring cases for trial.’’

Based upon this finding, the trial court concluded that

due diligence was not exercised. Prior to the hearing

and in an effort to demonstrate its exercise of due

diligence, petitioner attempted to depose the expert

impostor and the party who supplied the false wit-

ness to respondent’s counsel; the trial court prohibited

petitioner from taking those depositions.

Petitioner then filed its ‘‘Objection to Finding,

Judgment and Determination of Trial Court’’ pursu-

ant to the special procedure established by the Arizona

ch nnn alin. slmlanaimail

£4 Mek

Supreme Court. 111 Ariz. at 577, 535 P.2d at 616.

Petitioner contended:

1) that any determination of due diligence which

included considerations such as the size and

wealth of the party denied it of its constitu-

tional right to due process and equal protection ;

2) that the court could not properly rule on the

question of due diligence until the deposition

of respondent’s impostor and that of his sup-

plier were taken; and,

3) thar shifting the burden of assuring a witness’s

authenticity from the party presenting the wit-

ness to the adverse party, ‘‘denied this peti-

tioner’s constitutional right to due process....”’

(Objection to Finding, Judgment and Deter-

mination of Trial Court, p. 10.)

Simultaneously, the petitioner filed a motion with

the Supreme Court of Arizona requesting that the

transcript of the June 26, 1975 hearing be designated

as part of the record and that a time be set for oral

arguments.’ The petitioner stated the constitutional

deprivation which it would sustain if the court failed

to review the original transcript of the hearing as

follows:

*’ The motion requested an order:

**1) Granting and setting a time for oral argument in this

matter ;

2) Granting the appellant the right to file a Reply Memo-

rendum to the Response of the appellee to the Objec-

tions filed herewith to the Trial Court’s Findings, Judg-

ment and Determination dated August 8, 1975.

3) Designating as part of the record in this matter the

Transcript of the hearing held on June 26, 1975.’’

‘“‘that any determination of this case without a

thorough review of the Transcript of June 26,

1975 hearing would constitute a violation of the

[ petitioner’s] rights.

* * * *

Due process under the Federal and State Consti-

tutions requires ... that the necessary record be

completed so that the Court will have a complete

record before it prior to making its determination.”’

(Motion, p. 2.)

The Supreme Court of Arizona denied both peti-

tioner’s motion for oral argument and request to file

a supplemental memorandum. The Supreme Court of

Arizona failed to rule on petitioner’s motion to sup-

plement the record; in fact, the court failed to desig-

nate the transcript of the June 26, 1975 hearing as

part of the record.‘ Thus, the court failed to review

the testimony of the hearing held pursuant to its

own order, prior to rendering its supplemental decision

of October 7, 1975.

In the supplemental cpinion, the Supreme Court

of Arizona affirmed the trial court’s determination

without reference to the constitutional objections

raised.

The petitioner, in its second motion for rehearing,

onee again clearly placed the following constitutional

issues before the court:

*The failure of the Arizona Supreme Court to review this

Transcript is conclusively established by the letters from the

Clerk of the Trial Court having possession of said Transcript.

Appendix. (These letters were attached to the second motion for

rehearing filed with the Arizona Supreme Court.)

ee ee

MMe

1. the petitioner contended that

‘*[it] was deprived of its constitutional right

to equal oy a and due process of law

because the Supplemental Opinion promul-

gates the doctrines a) that a party having a

large investigation staff is held to a higher

standard of due diligence and b) that the

burden of determining the authenticity o* the

credentials of an expert witness rests —

on the adverse party, rather than the party

tendering the witness.’’ (Motion for Re “ed

ing, p. 3.) ;

2. the court’s failure to review the record of the

mandated hearing prier to issuing its opinion

effectively denied petitioner of procedural due

process. Specifically, the court was requested

‘‘Tt]o rehear and reconsider its decision, as

set forth in its Supplemental Opinion which

affirmed the judgment of the trial court as

set forth in its Report and Decision, on the

grounds that the record of the June 26, 1975,

hearing was not before this court, and there-

fore, this court could not determine whether

the trial court’s decision was supported by

the record; consequently, appellant was de-

nied its constitutional right of procedural

due process.’’ (Motion for Rehearing, p. 10.) ;

and, the petitioner contended that

3. ‘“‘[shifting] the burden of determining the

authenticity of the credentials of an expert

witness rests solely on the adverse party,

rather than the party tendering the witness

denied petitioner of due process of law.”

(Motion for Rehearing, p. 23.).

Petitioner once again requested oral argument; this

motion was denied. The Supreme Court of Arizona

also denied petitioner’s motion for rehearing on No-

vember 18, 1975 without addressing the constitutional

issues repeatedly placed before it by this petitioner.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Has Promulgated the Doctrine, Heretofore

Foreign to the Common Law of the United States, That an

Appellate Court Need Not Review the Record Prior to Rendering

Its Decision.

The requirement of due process of law is not con-

fined to proceedings in the trial court but includes

proceedings on appeal in state court. U.S. v. Mills,

21 F. Supp. 616 (E.D. Penn. 1937).

This controversy was remanded to the trial court

to determine whether the petitioner exercised due dili-

gence in discovering that respondent’s sole recon-

struction expert was a perjurer; a transcript of those

proceedings was made.

The petitioner, on proper motion, requested that

the transcript be designated part of the record in

order that the Supreme Court of Arizona could review

the entire record prior to rendering a decision. The

court refused to rule upon this request and based its

decision on the trial court’s ‘‘Report and Decision”’

rather than reviewing the transcript of proceedings.

The law of Arizona is clear that a memorandum

opinion of the trial court is not a part of the record

on appeal. Robinson v. Herring, 75 Ariz. 166, 253 P.2d

347 (1953). In disregard of this basic maxim, the

Supreme Court of Arizona refused to designate the

original transcript part of the record and failed to

review the evidence prior to rendering its decision.

The adversary appellate system is predicated upon

an appellant’s opportunity to persuade a reviewing

a etch

court that the legal conclusions of a trial court are

erroneous; the starting point of such contentions is

the transcript of the proceeding. Gardner v. Califor-

nia, 393 U.S. 367 (1969). Without the benefit of a

transcript, a reviewing court cannot determine whether

the lower court’s conclusions are supported by the

record.

It is elementary that a court which renders a deci-

sion prior to receiving all the evid nce deprives the

litigant of property without due process of law. Rosen-

berg v. Baum, 153 F.2d 10 (10th Cir. 1946). The Su-

preme Court of Arizona’s failure to review the tran-

script of proceedings, which it had ordered, reduced

the proceedings to a most perfunctory level. Not only

does this petitioner possess the constitutional right to

be heard, but that proceeding must be meaningful.

Goldberg v. Kelly, 397 U.S. 254 (1970).

The Supreme Court of Arizona’s affirmation of the

trial court’s findings without meaningful review of

the underlying evidence is in blatant disregard of this

petitioner’s constitutional right to due process of law;

approval or assent by the Supreme Court of the

United States to such procedures would be destructive

to the integrity of the adversary system.

2. The Supreme Court of Arizona’s Refusal to Hear Oral Argu-

ments, Once Properly Requested, and Striking Petitioner's

Only Brief on the Merits Filed with the Court Denied Peti-

tioner of Procedural Due Process.

After the court of appeals reversed the trial court

judgment against petitioner for $3,080,000.00, the re-

spondent, pursuant to Rule 4, 6, and 25 of the Rules

of the Supreme Court, filed a Petition for Review

and requested oral argument.

Petitioner relied on that request; however, oral

argument was not allowed. Rule 6 provides:

‘‘After the service and filing of briefs as author-

ized by these Rules, either party, upon timely

request as provided by Rule 25, will be heard

orally. The appellant will be heard for not more

than fifty minutes and the appellee for not more

than forty minutes, unless for special reason addi-

tional time is granted by the court. Counsel ap-

pearing as amici curiae shall not be heard except

when permitted by the court and then for such

time only as the court prescribes.’’ (Emphasis

Added.)

Despite the request being made pursuant to Rule 25

and the mandatory language of the Rule, oral argu-

ment was not allowed.

Without the benefit of oral argument or briefs,

except those filed below, the Supreme Court granted

review and rendered its decision cited supra.

Petitioner then filed its first motion for rehearing

again requesting oral argument. This request was de-

nied. The request was renewed in a motion filed simul-

taneous with petitioner’s Objections to Findings,

Judgment and Determination of Trial Court. This

request was also denied. Oral argument was requested

by petitioner, for a third time, on its second motion

for rehearing. This request, as the others, was denied.

Charles C. Bernstein, a former Chief Justice of the

Arizona Supreme Court stated that:

‘‘Oral argument is an excellent opportunity for

an attorney to bring his case to the undivided

attention of the Court. It is a time when both he

and the Court can assure themselves that the

issues of the case are thoroughly understood by

a ake

the Court .... As a general or perhaps universal

rule, counsel should not submit a case for deci-

sion without oral argument, and deprive himself

of this opportunity to state his position before

the Court.’’ Bernstein, The Disposition of Civil

Appeals in the Supreme Court, 5 Ariz. L. Rev.

174, 187 (1964).

Petitioner was consistently denied its right to oral

argument in spite of the unequivocal language of the

Supreme Court Rules; that refusal precluded peti-—

tioner from exercising its constitutional right to pre-

sent its position to the court.

Once the Supreme Court of Arizona reversed the

court of appeals petitioner filed, pursuant to Rule

47(a), Rules of the Supreme Court, a timely motion

for rehearing; this motion was stricken from the

record as ‘‘disrespectful and abusive.’’® At this point

in the proceedings then, petitioner had not been af-

forded the right to present its position orally, and the

only legal brief it submitted had not been considered,

but was stricken.

These procedural defects, which were thrust upon

petitioner, interfered with the exercise of constitu-

tionally protected rights. When these defects are com-

bined with the Supreme Court of Arizona’s failure

to review the original transcript of a proceeding held

pursuant to its own order it is plain that petitioner

was subjected to a meaningless appellate process. This

° Petitioner admits that its memorandum was candid and foree-

ful; denies that it was either disrespectful or abusive, and is of

the opinion that if the submitted memorandum had been objectively

considered, a rehearing would have been granted.

is contrary to the mandate of the United States Su-

preme Court that an appeal, once provided, must be

meaningful. Goldberg v. Kelly, 397 U.S. 254 (1970).

3. The Laws of the United States and the State of Arizona Are

Contrary to the Arizona Supreme Court’s Conclusion That

the Size, Wealth, and Available Staff of the Petitioner Are

Proper Considerations in Determining Whether It Exercised

Due Diligence in Presenting the Newly Discovered Evidence

Which Proved That Respondent Presented an Imposter at Trial:

Moreover, Failure to Allow the Taking of Relevant Deposi-

tions Precluded Petitioner From Demonstrating Its Exercise of

Due Diligence.

' Wealth discrimination is not a fundamental right

which requires a showing of a compelling state interest

to sustain the classification. San Antonio School Dist.

v. Rodriquez, 411 U.S. 1 (1973). To sustain distine-

tions based upon wealth, however, a reasonable basis

for the classification must exist and it must not be

arbitrary in nature. Dandridge v. Williams, 397 U.S.

471 (1970); Walters v. St. Louis, 347 U.S. 231 (1954).

Corporations are persons within the ambit of pro-

tection of the equal protection and due process clauses.

Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732

(3rd Cir. 1973). Consequently, any distinctions be-

tween the burdens placed on individuals and those on

corporations, as it regards the exercise of due dili-

gence in revealing newly discovered evidence, must

have a reasonable and rational basis for its promul-

gation.

Petitioner is unable to discover authority to sup-

port the classification promulgated by the Supreme

Court of Arizona. Moreover, neither the record of

the trial court nor the opinion of the Supreme Court

of Arizona states the basis for its conclusion that the

number of special agents, police officers and legal staff

available to it is rationally related to the question of

petitioner’s exercise of due diligence.

Petitioner attempted to take the depositions of re-

spondent’s perjurer and the person producing him so

that the court would have all the available evidence

before it prior to determining the issue of due dili-

gence.

The court prevented the taking of those depositions

which would have demonstrated the impostor’s ex-

traordinary skill at deception. It thereby precluded

consideration of evidence relevant to the issue of due

diligence. This judicial prohibition severely curtailed

petitioner’s constitutional rights.

Any classification violative of the equal protection

clause of the Constitution also violates the due process

clause. Johnson v. Robinson, 415 U.S. 361 (1974). The

classification which has been drawn here is arbitrary

and lacks a valid state objective the absence of which

violates this petitioner’s constitutionally protected

rights. Turner v. Fouche, 396 U.S. 346 (1970). The

court’s refusal to allow discovery relevant to the issue

before it, produced an intolerable result.

4. Sustaining a Jury Verdict Predicated Upon Perjured Testimony

Perverts the Jury System and Effectively Thrusts the Burden

of Discovering the Authenticity of a Witness Upon the Adverse

Party Thereby Depriving the Adverse Party of His Right to

Jury Trial and Due Process of Law.

The Supreme Court of Arizona, in its supplemental

opinion, affirmed the trial court’s determination that

the presence of perjured testimony was not of such

character that, upon retrial without the perjured testi-

mony, a different result would occur.

The imperative question of upholding a jury ver-

dict, which is premised to an unknown degree upon

perjured testimony, was blandly disregarded by the

trial court as evidenced by its statement that:

‘‘Te]asting aside the witness’s testimony concern-

ing his educational background and experience,

his testimony was merely that of a typical acci-

dent reconstruction expert.’ (Report and Deci-

sion, p. 4.)

Arizona constitutionally provides for trial by jury

in civil eases. Ariz. Const. Art. 2 § 23. The Supreme

Court of Arizona’s determination that perjured testi-

mony, presented to and considered by the jury, is not

basis for reasonably believing that a new result would

occur upon retrial contravenes petitioner’s right to

a jury trial. Moreover, effectively shifting the burden

of determining an expert’s authenticity, from the

party presenting him, to the adverse party is destruc-

tive of the adversary system and denies an opponent

due process of law.

There are relatively few reported incidents of ex-

pert witnesses perjuring their testimony. See 38

A.L.R. 3rd 812. The majority of courts considering

the question, in the context of a motion for new trial,

and more specifically in determining whether a dif-

ferent result would oceur upon retrial, have held that

the jury verdict, albeit founded on perjured testi-

mony, car be upheld. See, e.g., Barton v. Plaisted,

109 N.H. 428, 256 A.2d 642 (1969); Freeman v. Jerg-

ins, 125 Cal.App.2d 536, 271 P.2d 210 (1954). But

il ata ne tet el al

cf., Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519

(1949).

These decisions completely disregard the function

of a jury in a civil case. The cornerstone of the jury

system is the submission of disputed facts to the jury

for final arbitration. Gasoline Products Co. v. Cham-

plin Refining Co., 283 U.S. 494 (1931). Traditionally,

jurors are instructed, as they were here, that they are

the sole judges of the credibility of witnesses and

their truthfulness; indeed, the jurors are to determine

the weight to be given to the testimony of any witness.

Batt v. State, 28 Utah 2d 417, 503 P.2d 855 (1972).

Jurors are bound to follow these instructions in ren-

dering a verdict.

State courts have concluded that although a jury

verdict is predicated upon perjured testimony, an

esoteric determination can be made, by the judge as a

thirteenth juror, that the perjured testimony was not

relevant to the jury verdict; this conclusion patently

violates a party’s constitutional right to jury trial.

The function of the jury is arbitrarily reduced to

meaningless conduct.

The perjured expert witness must be perceived as

the agent of the party presenting him. Barton v.

Plaisted, 109 N.H. 428, 256 A.2d 642 (1969) (dissent-

ing opinion). If he is not, then, the burden of vouch-

ing for the authenticity of a witness is shifted to the

adverse party. Once this onus is transferred, the ad-

versary system becomes suspect and the adverse party

is denied due process.

Permitting a jury verdict to stand, although predi-

eated upon perjured testimony, is wrong. There is no

empirical method of calculating the effect of an in-

dividual witness’s testimony on a jury verdict. This

maxim is substantiated by the presumption that preju-

dice exists when improper evidence is admitted upon

which the jury might act. Mezia v. Oliver, 148 U.S.

664 (1893). Furthermore, it must be assumed that the

jury was influenced to the fullest extent by any evi-

dence improperly admitted. Valley Transp. System v.

Reinartz, 67 Ariz. 380, 197 P.2d 269 (1948); Harris v.

Thompson, 18 Ariz. App. 154, 500 P.2d 1142 (1972).

In the instant case, an expert witness claimed the

most respectable of professional pedigrees. His testi-

mony, delivered in a beautifully cultured English ac-

cent, was directed to crucial issues in the controversy

on which he was the only expert witness. Certainly, it

eannot be contended with intellectual integrity that

this perjurer’s testimony had no affect upon the ulti-

mate verdict.

The position of petitioner is succinctly stated by

Justice Grimes of the New Hampshire Supreme Court

in his dissenting opinion in Barton v. Plaisted, supra,

‘‘We are dealing here not only with what effect

newly discovered evidence would have at a new

trial but with the fact that the jury was permitted

to hear and consider testimony from two hired

witnesses on a ‘significant issue’ which has now

been found to have been fraudulent.

* * * *

A rule which requires the Presiding Justice to

forecast the workings of the minds of twelve sup-

positious jurymen can hardly be regarded as

sensible.’’

256 A.2d at 649.

Petitioner vigorously contends that ‘‘[p]lacing a

burden upon a party prior to trial to discover

PU tne (ate en &

the integrity of each witness presented by the ad-

verse party, perverts the adversary system. More-

over, when this burden is either increased or de-

creased depending on the size and investigatory

staff available tu a party, it is tantamount to a

denial of a party’s constitutional right to due

process and equal protection of law.’’

(Objection to Finding, Judgment and Determi-

nation of Trial Court, p. 10.)

This same contention was properly placed before the

Supreme Court of Arizona, which rather than address

the issue, chose to ignore it.

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Su-

preme Court of Arizona.

Respectfully submitted,

Harotp C. Warnock

Ricuarp M. Brtpy

Barry M. Davis

Valley National Building

Tueson, Arizona 85701

Attorneys for Petitioner

Southern Pacific

Transportation Company

Of Counsel: ;

Busy, THomMpson, SHOENHAIR

& Warnock, P.C.

Valley National Building

Tucson, Arizona 85701

ll ie el i eee

APPENDIX.

— .- ope ote ane c 2 Po. IE RENAN TREE. 6

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

No. 2 CA-Ci V/V 1578

Pima County Superior Court

Cause No. 143887

SourHern Paciric TRANSPORTATION COMPANY,

a Delaware corporation,

Appellant,

Mevante Lveck in her individual capacity and as surviving

widow of Wru1aM T. Lueck, deceased,

Appellee.

Petition for Review and Request for Oral Argument

Comes Now Metante Lueck, Appellee, in the above en-

titled Court, and pursuant to Supreme Court Rule 47(b),

does state that her motion for rehearing was denied by

order dated the 24th day of September, 1974, and that

herewith is filed a petition for review by the Arizona

Supreme Court.

Appellee further requests, pursuant to Supreme Court

Rules 4, 6 and 25, oral argument in the above entitled

matter.

Dated this 8th day of October, 1974.

BarBerR, Hararson, Gites & Moore

/s/ Dats Haratson

Dale Haralson

703 Home Federal Tower

Tucson, Arizona 85701

Attorneys for Appellee

(CERTIFICATE OF SERVICE OMITTED IN PRINTING)

IN THE SUPREME COURT OF THE STATE OF ARIZONA

In Bane

No. 11768-PR

(Fircep Aprit 25, 1975)

SouTHern Paciric TRANSPORTATION COMPANY,

a Delaware corporation,

Appellant,

Vv.

Meanie Lvecx in her individual capacity and as surviving

widow of Wru1aMm T. Lveck, deceased,

Appellee.

Appeal from the Superior Court of Pima County

Honorable Lloyd C. Helm, Judge

Remanded with Directions

Opinion of the Court of Appeals, Division Two,

—— Ariz.App. , 523 P.2d 1327 (1974)

Vacated

Bilby, Thompson, Shoenhair Tucson

& Warnock

By Harold C. Warnock

Richard M. Bilby

Attorneys for Appellant

Barber, Haralson, Giles Tucson

& Moore

By D. Dale Haralson

Attorneys for Appellee

The Association of Trial Lawyers Phoenix

of America, Arizona Branch

By Robert G. Begam

Amicus Curiae

SrrucEMEyYER, Vice Chief Justice

This is an appeal from a verdict of a jury and a judg-

ment in an action for wrongful death at a railroad cross-

ing. The jury in a unanimous verdict awarded $2,000,000,

compensatory, and $1,080,000, punitive damages to Melanie

Lueck, the surviving widow of William T. Lueck, deceased,

and their two children, ages six years and 18 months. The

Court of Appeals, —— Ariz.App. ——, 523 P.2d 1327

(1974), reversed, expressing the view that the evidence

was not sufficient to submit to the jury the question as

to whether the deceased’s contributory negligence was

barred by the defendant’s wanton negligence. Decision of

the Court of Appeals vacated.

We think it is first appropriate to review the law rele-

vant to a determination of wanton and willful negligence

in this case. Since Southern Pacific R. R. Co. v. Svendson,

13 Ariz. 111, 108 P. 262 (1910), wanton negligence has been

a bar to the defense of contributory negligence. There, the

court approved the statement:

‘‘The doctrine that contributory negligence will de-

feat recovery has no application where the injury is

the result of the willful, wanton, reckless conduct of

defendant.’’ 13 Ariz. at 117, 108 P. at 264, 265.

The definition of wanton negligence as found in the

Restatement of Law, Torts, was adopted in Arizona in

1945, Womack v. Preach, 63 Ariz. 390, 163 P.2d 280 (1945),

and has been followed since. Conduct is wanton if a de-

fendant intentionally does or fails to do an act, knowing

or having reason to know of facts which would lead a

reasonable man to realize that his conduct not only created

an unreasonable risk of harm to another but involved a

high degree of probability that such harm would result.

The Restatement of Law, Second, although defining

wanton negligence in terms of reckless conduct, appends

this informative comment:

‘‘q, Types of reckless conduct. Recklessness may con-

sist of either of two different types of conduct. In one

the actor knows, or has reason to know, as that term is

defined in 4 12, of facts which create a high degree of

risk of physical harm to another, and deliberately pro-

ceeds to act, or to fail to act, in conscious disregard

of, or indifference to, that risk. In the other the actor

has such knowledge, or reason to know, of the facts,

but does not realize or appreciate the high degree of

risk involved, although a reasonable man in his posi-

tion would so so. An objective standard is applied to

him, and he is held to the realization of the aggravated

risk which a reasonable man in his place would have,

although he does not himself have it.’’ (Comment a

to § 500, at 587, 588.)

Willful misconduct means intentional, wrongful conduct,

done either with knowledge that serious injury to another

probably will result or with a wanton and reckless disre-

gard of the possible results and is essentially a question of

fact. Olea v. Southern Pacific Company, 77 Cal.Rptr. 332,

272 Cal.App.2d 261 (1969).

‘‘The usual meaning assigned to ‘wilful,’ ‘wanton’

or ‘reckless,’ according to taste as to the word used, is

that the actor has intentionally done an act of an un-

reasonable character in disregard of a risk known to

him or so obvious that he must be taken to have been

aware of it, and so great as to make it highly probable

that harm would follow.’’ Prosser, Torts, 4th ed.,

§ 34, p. 185.

To determine wanton negligence, the acts of a defend-

ant must be considered as a whole and although each of

several acts standing alone might not exceed the bounds

of ordinary negligence, yet taken together they may estab-

lish wanton negligence. Carley v. Meinke, 181 Neb. 648,

150 N.W.2d 256 (1967). Where the evidence discloses sev-

eral acts of negligence, whether gross or wanton negligence

is established is a matter for the jury. Brown v. Riner

(Wyo.), 500 P.2d 524 (1972).

At about 1:00 p.m. on November 29, 1966, on a clear

day, William Lueck, a 30-year-old resident of Willcox,

Arizona, was fatally injured when the truck he was driving

was struck by a Southern Pacific Transportation Com-

pany train at the Maley Street crossing within the cor- —

porate limits of Willcox, Arizona. Shortly before the de-

ceased’s truck entered upon the railroad crossing, the

Southern Pacific’s Blue Streak Manifest passed over the

Maley Street crossing on the main line traveling west-

ward. The Blue Streak Manifest was followed one and

one-half to two minutes later by a work train. This latter

train struck the deceased’s truck.

Maley Street is a four-lane, north-south, paved highway

with cement curbs, two lanes for northbound and two for

scuthbound traffic. Prior to the accident, deceased was

driving his truck south on Maley Street loaded with 12

to 14 tons of sand and gravel at a speed of about five miles

per hour. He was a resident of Willcox, familiar with the

railroad crossing having used it almost daily. The crossing

consisted of four tracks. It averaged a daily traffic count

of 2700 to 3000 motor vehicles and an average of 32 trains

in a 24-hour period. The decreased was struck on the main

line, the second track from north to south. (See sketch

adapted from defendant’s Exhibit N.)

The railroad crossing where the accident occurred was

protected by all the usual railroad crossing signs. In addi-

tion to the standard crossbucks, highway and pavement

markings, there were four flashing red lights, eight inches

in diameter with warning bells located at the sides of the

crossing and two flashing red lights on an overhead canti-

lever extending over the center of the inside traffic lane

with warning bells and a square sign warning ‘‘stop on red

signal.’’ At the time of the accident, since changed, the

flashing lights and warning bells were activated by trains

on the switching tracks.

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It is plaintiff’s position that even if the warning bells

and the flashing red lights had not momentarily stopped

between the passage of the two trains, all the facts and

circumstances then existing at the crossing tended to con-

fuse and mislead the deceased. She points to 25 inferences

which she derives from the evidence to support her claim

of wanton negligence. We think, however, it is unnecessary

to labor the issue to that extent. Taken in a light most

favorable to upholding the jury’s verdict, the facts here-

inafter recited are more than sufficient to support a finding

of both wanton and willful negligence.

Tue Evmence or WANTON AND WILLFUL NEGLIGENCE

By tHE SoutHERN Paciric TRANSPORTATION COMPANY

Two hundred feet north of the point of impact is the in-

tersection of a road parallel to the tracks, called Railroad

Street, and Maley Street. From Railroad Street almost

to the tracks the vision of an approaching motorist is ob-

structed both to the right and left as the crossing is ap-

proached from the north. On the left of a motorist is a city

park in which trees obstruct the view to the east. On the

right between Railroad Street and the tracks is a depot.

The depot obstructs the view of a motorist looking toward

the railroad siding and switching area on the right, to

the west.

To the right at a distance of approximately one-fourth

of a mile was a freight train at rest, waiting for the main

line to clear.

The work train which struck the deceased consisted of

an engine and caboose. The engine was running backward,

pulling the caboose although it could have been turned at

Bowie, a town approximately 24 miles to the east of Will-

cox. It was the : onductor’s responsibility and decision as

to how the engine should be run. Because the engine was

running in a backing position, the engineer had to rely on

the fireman for information as to conditions on the north

side of the railroad right of way.

The fireman saw the deceased’s truck twenty seconds

before the collision. He warned the engineer five times that

he didn’t think the deceased was going to stop, testifying:

‘*Q. Sir, how many times between the time you first

told him, Mr. Rhoades [the engineer], you didn’t think

he was going to stop, and the time you actually told

him to big-hole it; how many other times did you indi-

cate that you didn’t think he was going to stop?

A. To my knowledge, twice and maybe three times.

Q. So you indicated to him two to three times in

addition to the first one that you didn’t think Bill was

going to stop; is that correct, sir?

A. To my knowledge, yes.

Q. And then at approximately the fifth time, you

said he is not going to stop, big-hole it?

A. (Affirmative nod)

Q. And he did; is that correct, sir?

A. Yes, sir.’’

No effort was made by either the fireman, who also had

emergency brake controls at the position where he sat, or

the engineer to reduce the speed of the train until just be-

fore the impact. After striking the deceased’s truck, the

work train traveled between 2300 and 2500 feet before it

came to a stop.

Because the engine of the work train was running back-

ward, the oscillating white light on the front of the engine

was pointing to the rear and was turned off. The oscillating

light is a warning light designed to give a different and

greater warning than the usual headlight. The single non-

oscillating backing light at the rear of the engine was on.

The work train left Bowie going west from eight to ten

minutes behind the Southern Pacific’s Blue Streak Mani-

fest which was traveling at the average speed of 60 miles

per hour. At Willcox the work train had gained on the Blue

Streak Manifest until it was between one and one-half to

two minutes behind. The engineer is required by the South-

ern Pacific Company to proceed at maximum authorized

speed, which was at the crossing 60 miles per hour. No

allowance is made for lack of visibility.

A brakeman, who was sitting in the caboose, testified that

the railroad’s system of block lights was on yellow. When

the block lights are on yellow, the railroad’s safety rules

require a train to proceed at a speed not in excess of 40

miles per hour. The accident report filed by the engineer

the day of the accident showed that the work train was

traveling at a speed of 52 miles per hour. The plaintiff’s

reconstruction expert testified that in his opinion, because

of the distance required to bring the work train to a stop

and other factors, it was traveling at a speed of up to 70

miles per hour. If the work train had been traveling at

40 miles per hour, according to the same expert, there

would have been no collision.

Prior to 1965, a year before the accident, the speed limit

for trains passing through the City of Willcox was fixed

by the City Council at 30 miles per hour. Four years prior,

the defendant railroad commenced negotiations with the

City which culminated about a year before the accident

with the Council raising the speed limit to 60 miles per

hour on assurances from the railroad of the safety of the

crossing. There had been four accidents at this crossing

within the period from January 1963 to April 1966.

The ju:, could conclude from the foregoing stated facts

that the Southern Pacific Transportation Company was

negligent in at least these particulars:

1. Since the speed limit for trains was fixed at 60 miles

per hour through the City of Willcox and since the work

train was running at the estimated speed of as high as

70 miles per hour, it could have concluded that the work

10a

train was being operated in violation of the speed law and

that such constituted negligence per se.

2. Since by statute A.R.S. § 40-855 it is a criminal of-

fense for an agent or servant uf a railroad company to be

guilty of any violation or omission of duty whereby human

life or safety is endangered and by the company’s rules,

Rules 505, et seq., when an automatic block signal displays

yellow a train must move at a speed not to exceed 40 miles

per hour, the jury could conclude from the engineer’s

report alone that the work train was in violation of Arizona

statute § 40-855 in that it was being operated in violation

of law and that this constituted negligence per se.

3. Since by Rule 17-D of the company’s rules and reg-

ulations the oscillating white light on an engine ‘‘* * *

must be operated approaching road crossings at grade

both day and night under all conditions’’ and the engine

was running backward so that the oscillating white light

was not visible to the front, and was, in fact, turned off,

and the engine could have been turned at Bowie, the jury

could believe that the failure to run the engine in the for-

ward position endangered the lives of persons who might

expect a through train moving on the main line at a high

rate of speed to show the oscillating warning light. This

violation of the company’s safety rules is a violation of

law and was negligence per se.

As to these three points, A.R.S. § 40-423 is applicable.

Subsection A thereof provides:

‘‘If any public service corporation does or permits

to be done anything forbidden or declared to be un-

lawful, or omits to do anything required to be done,

by the constitution or laws of the state, or by orders

of the commission, the corporation is liable to the per-

sons affected thereby for all loss, damages or injury

caused thereby or resulting therefrom. If the court

finds that the act or omission was wilful, it may also

award exemplary damages.’’

lla

4. Since in traveling backward, the engineer had to look

from the side window rather than through the front window

and his view forward and to his right was impaired by the

long end of the engine, the jury could conclude that this

could result in the inability to control the train in an

emergency and was a contributing cause to this accident.

As the court said in Lester v. Atchison, Topeka and Santa

Fe Railway Co., 275 F.2d 42, 45 (10th Cir. 1960):

‘If the jury should find that the choice of conduct of

the train crew in running the train backward, knowing

that the control and safety of the operation of the

short and heavy train was thereby greatly impaired

was wrongful to such an extent as to evince a reckless

disregard for the rights of others, we believe a finding

of gross negligence permissible under New Mexico

law.’’

5. Since the fireman saw the deceased approaching the

crossing approximately twenty seconds before the brakes

were applied and told the engineer five times that he didn’t

think the deceased was going to stop, the jury could con-

clude wanton negligence from the deliberate maintenance

of speed in disregard of observed danger. Western Con-

structors, Inc. v. Southern Pacific Company, 381 F.2d 573

(9th Cir. 1967).

Two further points should be made. They require en-

largement on the facts related to this point.

6. Theodore H. Kruttschnitt, then Public Projects Engi-

neer of Southern Pacific Company, testified concerning

certain factors from which a conclusion could be drawn as

to when a crossing is more than ordinarily dangerous:

**Q. Would you consider the location, say, within a

quarter mile area of known switching operations and

sidings is a factor that should be considered?

A. Yes * * *®.

12a

Q. That kind of goes to the area of driver confusion

or driver distraction, does it not, sir? The possibility

that a driver may misinterpret signals as to whether

or not another train is approaching on the main track

or whether or not the signals may be activated by op-

erations in a switching or siding area?

A. Yes.’’

He also testified:

‘*My experience as a commutor taught me that

many of our very sad accidents were what I call the

two-train type where a motorist will wait for a train

coming in one direction which he sees and as soon as

that train passes he starts up across the railroad in

spite of the fact that the ilashing lights are still work-

ing and gets hit by an unseen train going in the other

direction on the other track.”’

The jury could conclude that Kruttschnitt’s observation

as to driver confusion were also true when one train fol-

lows closely behind another and that consequently the

Maley Street crossing presented an unreasonable risk of

bodily harm to others because of a high degree of prob-

ability that such harm would occur when the circumstances

combined to confuse or mislead a motorist.

7. It is plaintiff’s position that the Southern Pacific

Transportation Company was in possession of information

which would require that automatic gates be installed at

the Maley Street crossing in order to adequately protect

the public, but either through gross carelessness or delib-

eration the information was withheld from the City Council

of Willcox at the time the defendant requested the Council

to raise the speed limit from 30 to 60 miles per hour and,

further, that this information was withheld from its divi-

sion employees who were charged with the responsibility

of evaluating the crossing and from the interested Arizona

agencies.

13a

The plaintiff’s case of willful negligence is based upon

these facts. Both Kruttschnitt, now Assistant to the Chief

Engineer, and Frank Lathrop, Public Projects Engineer

for Southern Pacific Company whose area covers Cali-

fornia, Arizona and New Mexico, testified to a 24-year

study done by the defendant company, completed in 1961

under the supervision of Kruttschnitt, which revealed

among other things that crossings protected by flashing

red lights, including cantilevers, have more incidents of

accidents than those protected by the customary cross-

bucks and highway markings. It also showed that auto-

matic crossing gates reduce fatal accidents over any other

type of protective device, including a crossing watchman,

by 90%.

Kruttschnitt also had knowledge of another study pre-

pared by the California Public Utilities Commission which

covered 168 crossings in California from the period of

July 1, 1954 through July 30, 1964, conducted in basically

the same manner as Krutischnitt’s study. The California

Public Utilities Commission study concluded among other

things :

‘‘Stated another way it appears that if automatic

crossing gates had not been installed at these 113

points there would be approximately 52 more accidents,

ten more deaths, and 25 more injured persons at this

group of crossings in each calendar year as shown in

Line 5 of Table 3.

In other words if the gates installed during the ten-

year test period were in operation during the entire

ten years there would have been 271 fewer accidents,

50 fewer fatalities and 131 fewer injuries.’’

Neither the Kruttschnitt study nor the California Pub-

lic Utilities Commission study was known to the employees

of the Tucson Division of the Southern Pacific who were

l4a

charged with the responsibility of evaluating crossings

and recommending safety devices.

R. O. Coltrin, Superintendent of the Tucson Division,

charged with the ultimate evaluation of protective devices

and recommendations for improvement, testified that he

was not aware of the Kruttschnitt study.

Deryl B. Zumwalt, Division Engineer for the Tucson

~ Division, delegated the evaluation and recommendation for

improvement to Assistant Engineer Cornelius Sullivan.

Zumwalt’s testimony was contradictory. He testified in this

ease that he did know of the Kruttschnitt study, but was

impeached by a showing that he had testified in a case in

Maricopa County, Arizona in 1969 that he never heard of

any such study. He did acknowledge that he had not per-

sonally seen a copy of the study.

Assistant Division Engineer Cornelius Sullivan had

never seen the Kruttschnitt study until November 1969

and was not aware of its existence until that time. Sullivan

also testified that if he had been aware of the conclusions

of the study he probably would have recommended gates

at the Maley Street crossing in 1963.

*Q. ** #

Sir, with the knowledge of that study and the com-

parison of fixed signs as compared to automatic sig-

nals and the fact that the study indicated you could

expect more aceidents and more combined injuries and

fatalities at automatic signals than fixed signs would

that have had any bearing on your recommendations to

the City of Willcox from ’63 through ’66 if you had had

that information made available to you?

A. It probably would have, yes.

Q. Thank you, sir. And what you are saying is, with

that kind of information you probably would have rec-

ommended gates; right, sir?

A. Yes.”’

lia

Other interested persons were never informed of the

Kruttschnitt study. William J. Whisnant, Director of the

Tariff and Rate Division of the Arizona Corporation Com-

mission, testified that he had never been or heard of the

Kruttschnitt study. So far as he was aware it had never

been furnished to the Corporation Commission. Edward P.

Brown, Supervisor of the Utility Railroad Engineering

Division of the Arizona Highway Commission, testified

that he had never seen a study of the Southern Pacific

Company concerning the effectiveness of grade crossing

warning devices.

Kenneth P. Hamblin, an employee of the Arizona High-

way Department since 1959, who had been Supervisor of

the Traffic Study Section for three years and a field study

supervisor for an additional three years, testified to a

study he had made of the Maley Street crossing in May of

1966, six months before decedent’s death, at the request

of the City Manager of Willcox. He concluded that there

should be crossing gates installed at Maley Street, testi-

fying:

‘‘It is a combination of conditions that existed at

that time: One being that it was an urban crossing, a

multi-lane highway, the daily vehicle count and a lim-

ited view of approaching trains; the fact that there

were four tracks, switching operations, thirty-two

trains daily, sixty mile per hour trains and the acci-

dent experience that had been there in the last couple

of years, the couple of years prior to the study.’’

That the Arizona Highway Department was studying the

Maley Street crossing was conveyed to the Southern Pa-

cific Company at least as early as April 19, 1966. This con-

clusion was reported to the City Manager of Willcox in

July of 1966.

Lathrop listed the factors to be consider i in determin-

ing whether gates should be installed at crossings. They

were:

16a

1. Motor vehicle speed.

2. Visibility of the motor vehicle driver as he ap-

proaches the crossing.

3. Visibility of the train crew.

4. Parallel streets relatively close to the crossing.

5. Intersections near the crossing.

6. Speed of trains.

7. Switching activity in the vicinity of the crossing

which periodically activates the signals at the crossing.

8. Number of trains per day.

9. The motor vehicle traffic count.

10. The accident history of the crossing.

11. The grade of approach.

Lathrop’s testimony on cross-examination was to the

effect that all these factors were present at the Maley

Street crossing except the grade approach. He also was

examined extensively on his recommendation that gates be

installed at certain California crossings based on the ex-

istence of some, but not all, of the hazardous factors which

he listed as existing at the Maley Street crossing.

Kruttschnitt listed three additional factors which should

be taken into consideration:

1. Weather conditions.

2. Width of the highway; whether it was of two, four or

six lanes, and

3. Whether the crossing was a single or multi-track

crossing.

Prince Pierson, City Manager of the City of Willcox‘at

the time of the collision, testified that the City Council

would have followed the recommendations of the Southern

17a

Pacific Company with regard to safety and would have

directed the installation of gates at any time that the

Southern Pacific had recommended it. He also testified

that he was never told of the Kruttschnitt study, but had

he known of the conclusions of the study he would have

recommended the installation of gates to the City Council.

The Plaintiff submitted certain interrogatories to the

Southern Pacific Transportation Company which included

in part the following questions:

‘*Are you aware of any studies, statistics, or re-

search projects which have been performed by you or

other organizations concerning the effectiveness, or

lack thereof, of crossing gates in reducing crossing

accidents and/or injuries?”’

Thereafter, when plaintiff felt that the answer was not

responsive to the question, she re-submitted the same in-

terrogatory, which the attorneys for the Southern Pacific

Transportation Company, under oath, answered, ‘‘No’’.

~ yom the foregoing, the jury could conclude that the

Southern Pacific Transportation Company was either will-

fully or wantonly negligent in failing to inform its agents

and employees in its Arizona Division or other interested

persons in Arizona of facts which, at the same time of in-

creasing the speed limit in 1965 from 30 to 60 miles per

hour through the City of Willcox, would have required the

installation of automatic crossing gates at Maley Street to

ensure the safety of the public.

DAMAGES

This brings us to the questions raised by appellant as

to the claimed excessiveness of the damages awarded by the

jury. In our most recent case on punitive damages, where

actual damages of $3,600 actual damages and $15,000 exem-

plary or punitive damages was awarded, we said:

18a

‘**Punitive damages are allowed on grounds of public

policy, Downs v. Sulphur Springs Valley Electric

Coop., 80 Ariz. 286, 297 P.2d 339 (1956), and are based

on aggravated, wanton, reckless or maliciously inten-

tional wrongdoing. Lufty v. Roper, 57 Ariz. 495, 115

P.2d 161 (1941). Such damages are not to be awarded

to compensate a plaintiff for the loss sustained, but,

rather, are awarded for the avowed purpose of punish-

ing the wrongdoer for his intentional misconduct and

they also act as a deterrent to further wrongdoing.

Nielson vy. Flashberg, supra; Restatement of the Law,

Torts, § 908 Comment a.’’ Acheson vy. Shafter, 107

Ariz. 576, 578, 490 P.2d 832, 834 (1971)

and we also said;

‘*In Arizona, the law is well settled that the amount

of an award for damages is a question peculiarly

within the province of the jury and such award will

not be disturbed on appeal except for the most cogent

of reasons, i.e., the verdict is so exorbitant as to indi-

cate passion, prejudice, mistake or a conrplete disre-

gard of the evidence and instructions of the court.

Meyer v. Ricklick, 99 Ariz. 355, 409 P.2d 280 (1965);

City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135

(1959). We have in the past, held that punitive dam-

ages will be upheld unless the verdict is ‘so manifestly

unfair, unreasonable and outrageous as to shock the

conscience of the Court.’ Young Candy & Tobacco

Company v. Montoya, 91 Ariz. 365, at 370, 372 P.2d

703 at 707 (1962).’’ 107 Ariz. at 579, 490 P.2d at 835.

The purpose of punitive damages is to punish a wrong-

doer for his wrongdoing. The wealth or financial status of

the wrongdoer is therefore relevant and may be known to

the jury so that it may impose an appropriate punishment.

Acheson vy. Shafter, supra; Nielson v. Flashberg, 101 Ariz.

335, 419 P.2d 514 (1966). As to this, the plaintiff’s evidence

19a

established that the net assets of defendant were $1,712,-

727,000 for the year 1972 and that its annual income after

expenses but before income taxes was $165,555,000.

Applying the foregoing to the evidence in this case, it is

apparent that if the jury concluded that the Southern

Pacific Transportation Company had either deliberately

or through wanton or gross negligence withheld from its

employees facts which would have required and resulted

in the upgrading of the Maley Street crossing by the in-

stallation of crossing gates, the punitive damages awarded

were not so manifestly unfair, unreasonable and outrageous

as to shock the conscience.

In examining defendant’s argument that the award of

actual damages by the jury is excessive, we consider that

the decision of the United States Supreme Court in Gru-

nenthal v. Long Island Railroad Company, 393 U.S. 156,

89 S.Ct 331, 21 L.Ed.2d 309 (1968), has particular signi-

ficance. There, a jury in the Southern District of New York

awarded actual damages in the sum of $305,000. On appeal,

the Second Circuit ordered a remittitur of $105,000. The

Supreme Court observed that the discussion by the Court

of Appeals concerning the amount of damages was limited

to the bald statement that it could not in any rational man-

ner consistent with the evidence arrive at a sum greater

than $200,000. The Supreme Court in reinstating the jury’s

verdict held that if damages are ordered reduced by an ap-

pellate court an appraisal of the evidence must be made

which discloses the excessive nature thereof.

The defendant does not attempt to evaluate the evidence

other than pointing to the deceased’s income tax return,

which showed that in the five years preceding his death he

had taxable income in his best year of $5,834.37, and an

assumed economic loss to plaintiff of $691,769 reduced to

present value of $281,863. Defendant argues that $281,863

would not provide a basis for a two million dollars com-

pensatory award. The figure of $281,863 is taken from the

20a

testimony of Edward Heller, by profession an economist

with a specialty in the field of manpower economy, resource

economics, He testified that there were studies available

as to future earning capacity of an individual as it relates

to inflation and the purchasing power of the dollar, and that

hy means of these he was able to project what a person of

a given education and training could reasonably earn in

the future.

'leller made a study or evaluation of the earning ca-

pacity of deceased. In arriving at his conclusions, among

the factors considered were that the deceased was a high

school graduate with vocational training in welding and

had operated a welding shop from his high school days

until 1961 when he started the business known as Lueck’s

Construction Materials, He testified:

“A. * * * In terms of surveying the job market, Mr.

Lueck, as a—what we would call a heavy-duty welder,

heavy-duty concrete—I can’t now remember the exact

title now, but it’s a-—conerete journeyman; a person

who could pour, finish, do the molding work necessary

with heavy concrete construction—ecould have expected

to earn around the same $800 per month at the—in

1966,

(. Would 1 be correct, then, the fringe benefits, plus

the S00 a month, are the figures you used to make your

ultimate conclusion?

A. Yes. Plus the cost of replacing his services, less his

personal consumption.

Q. * * * What 1 was driving at, if Mr. Lueck had been

in the job market, rather than in a self-employed situ-

ation, would the additional fringe benefits he would

expect to have mean that he would have had a greater

earning capacity in a job market, as opposed to being

self-emploved? :

A. Very definitely.

— ewe

—

21a

Q. And yet you used the lesser end of those two fig-

ures?

A. Yes.”’

It is therefore apparent that the deceased’s earning ca-

pacity over his life expectancy of 41 years was predicated

on the assumption that Lueck could be employed as an ex-

pert welder or journeyman concrete worker.

The jury was not, however, compelled to accept as con-

clusive the statistical approach used by Heller. Other evi-

dence disclosed that deceased was a well-liked, industrious,

hard-working male of the age of 30 years, that the business

of Lueck’s Construction Materials involved manufacturing

and selling ready-mixed concrete for buildings and irriga-

tion ditches; that in addition deceased operated a gravel

pit and sold gravel; that in the course of the five years

since he started the business, he had acquired by the time

of his death three mixers, three dump trucks, three loaders,

a rock crusher, a steam shovel-and blade, and a batching

plant.

The Iowa Court in Nicoll v. Swett, 163 Iowa 683, 144

N.W. 615 (1913) has probably best summarized the diffi-

culties in the assessment of damages for wrongful death:

‘“‘Tt is correct to say, as does the appellant, that the

only true measure of recovery for the death of an

individual is the value of his life to his estate, had he

not come to such untimely end. It is hardly too much to

say that this rule is vague, uncertain, and speculative,

if not conjectural, but it is the best which judicial wis-

dom and experience has yet been able to formulate. No

evidence is possible of the time which deceased would

have lived but for the injury complained of. Had he

avoided this injury, death may have met him the next

day, week, or year in some other form. In business he

might have become a phenomenal success and accumu-

lated millions, or he might have lived to old age and

22a

died a pauper. From a man of good habits and pru-

dence and industry, he might have become a spend-

thrift or a tramp, or if a man of dissolute habits he

might have reformed into an efficient and prosperous

citizen. But the demands of justice will not tolerate the

idea that human life may be extinguished by the tort

of another without the wrongdoer being held to an-

swer therefor in damages, and the rule we have stated

is the one which has been devised for this purpose. The

principle which underlies it is of unquestionable sound-

ness, but the difficulty which besets its practical appli-

cation is in the fact that it calls for an estimate or

conclusion which must be arrived at by a balancing of

mere probabilities and possibilities which we deduce

by way of inference from the age, character, habits,

condition, education, employment, surroundings, and

apparent capacity of the deceased. Fairness to the ben-

eliciaries of the estate on the one hand and of the de-

fendant on the other require that the jury be put in

possession of all the facts having the slightest legiti-

mate bearing upon this intricate problem.’’ 163 Iowa

at GST-GSS, 144 N.W. 615 at 617.

Plaintiff points to the recent Florida case of Compania

Dominicana de Aviacion v. Knapp, 251 So.2d 18 (1971)

in which a verdict for $1,800,000 was upheld in favor of 5

father and mother for the wrongful death of their 13-vear-

old son, The son was a graduate of a junior high school

about to enter high school, a good student, f riendly, polite,

warm, active, religious, and at the time of his death was

working in his father’s paint and body shop. There was also

testimony as to the grief and anguish of the parents. The

Florida court noted that the amount of the verdict was

determined by a carefully chosen jury after a lengthy trial

before an experienced and knowledgeable judge with the

assistance of expert counsel. It said in eoneluding that the

verdict and judgment were suprorted in law and fact: **No

23a

one doubts that the verdict is large. No one doubts the

enduring pain which the parents have suffered.’’

While it is true the deceased’s net earnings for taxes

were relatively small, we think it can be said that the jury

could make its own evaluation of the earning capacity of

the deceased over his lifetime from the establishment of a

successful, going business at the age of thirty, which eval-

uation would be much greater than the purely statistical

approach used by Heller.

The jury could consider other matters for which the

inembers of deceased’s family should be compensated: For

the wife, her loss of love, affection, companionship, con-

sortium, and her personal anguish, sorrow, suffering and

pain and shock which resulted from her husband’s death.

For the six-year-old son, it was shown that following the

accident he commenced to draw pictures of train wrecks,

that he refused to go to school and developed head and

stomach aches and that these problems were determined to

have been caused by the emotional loss of his father, and

that it was three years before he overcame them. For the

18-month-old child, it was shown that after the accident he

would not leave the presence of his mother even to be held

by his grandparents and if his mother left he would scream

until she returned, and he refused to sleep in his own bed

until some six months after the death of his father. The

jury could also consider what the sons were to be compen-

sated for the loss of love, affection, comfort, guidance and

companionship which they would have received from their

father.

The defendant has not questioned the instructions on the

elements of damages which were submitted by the trial

court to the jury and no interrogatories or separate forms

of verdicts were requested from the jury segregating the

damages suffered by each survivor. There is accordingly

now no way of determining what the jury believed the

plaintiffs individually suffered. We are not convinced the

24a

verdict is so outrageously excessive that it compels the con-

clusion that it must have been based on passion and preju-

dice.

Orner Assertep Errors

The defendant urged that the instructions on wanton

negligence were erroneous and prejudicial and points to

plaintiff’s instructions 8, 26(a) and 34. In those instruc-

tions, the terms gross negligence, wanton negligence, and

willful misconduct are used. It is argued that the jury could

thereby infer that there were three separate categories of

negligence under which a verdict could be returned against

the defendant.

An examination of the objections to plaintiff’s instrue-

tions 8, 26(a) and 34 reveals that no objection was made

on this basis. Rule 51(a), Rules of Civil Procedure, 16

A.R.S., reads in its pertinent part:

‘‘No party may assign as error the giving or the

failure to give an instruction unless he objects thereto

before the jury retires to consider its verdict, stating

distinetly the matter to which he objects and the

grounds of his objection.”’

In Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335

(L972), the court commented on Rule 51(a) to this effect:

‘The purpose of Rule 51(a), supra, is to apprise both

the trial court and the party offering the instruction

of the exact nature of the objection so that the court

can intelligently rule thereon, eliminate objectionable

matter, and word the instruction in a manner which

might be agreeable to all parties."’ 1S Ariz. App. at

91, 500 P.2d at 351.

Defendant urges that the court erred in failing to give

its requested instruction No. 6. Defendant's requested No.

0 was to the effeet that an engineer or other employee in

25a

charge of a train has in the exercise of ordinary care the

right to presume that the vehicle a person is riding in over

a crossing is under control and in good repair. While as

an abstract proposition the instruction was correct, it was

properly refused because it suggested to the jury that

there was an issue whether deceased was in control of his

truck and whether it was in good repair. There was no

evidence that deceased did not have his truck under control

or that it was not in good repair. Hence, there was no issue

to be resolved by the use of a presumption.

Defendant’s requested instruction No. 12 is afflicted with

the same vice.

The defendant urges that the trial court erred in refus-

ing to give its requested instruction No. 7(b). The re-

quested instruction reads:

‘If you find the plaintiff’s contributory negligence

was gross or wanton, then the plaintiff may not re-

cover, regardless of whether the defendant was grossly

negligent.’’

While the Arizona courts have never ruled on the ab-

stract proposition that gross or wanton contributory negli-

gence on the part of a plaintiff is a defense to gross or

wanton contributory negligence on the part of the defend-

ant, we have many times held that where there are no

Arizona decisions clearly on point we will follow the Re-

statement of Law, Torts.

The Restatement of Law, Torts, published in 1939, did

not recognize the doctrine; however, the Restatement of

Law, Second published in 1965, by § 503 has adopted the

principle as governing. Section 503 provides:

**(1) A plaintiff’s contributory negligence does not

bar recovery for harm caused by the defendant’s reck-

less disregard for the plaintiff’s safety.

26a

(3) A plaintiff whose conduct is in reckless disregard

of his own safety is barred from recovery against a

defendant whose reckless disregard of the plaintiff's

safety is a legal cause of the plaintiff’s harm.’’

Comment c thereto reads:

‘*In general, the effect of the plaintiff’s reckless

disregard of his own safety is the same as that of his

ordinary contributory negligence. The exception to this

rule, stated in Subsection (3), is that where the plain-

tiff’s conduct is itself in reckless disregard of his own

safety, it bars his recovery not only from a defendant

who has merely been negligent, but also from one who

has acted in reckless disregard of the plaintiff’s safety.

The greater fault in the one case is balaneed against

the greater fault in the other.’’

We have concluded, consistent with our former decisions,

and we hold, that a plaintiff’s wanton contributory negli-

gence may be balanced against the wanton negligence of a

defendant so as to bar a recovery in Arizona. We are of

the opinion that as an abstract proposition a jury could

find that a person who drives upon a railroad crossing

against the flashing red lights was grossly or wantonly

negligent.

However, the defendant’s proffered instruction is plainly

deficient. First, it assumes that the plaintiff was not con-

tributorily negligent. Second, it fails to advise the jury that

this asserted gross or wanton contributory negligence must

be the proximate cause of the accident and injuries which

the deceased suffered; and, third, by wording ‘‘the plain-

tiff may not recover regardless’’ it strongly tends to sug-

gest that the jury must not return a verdict in favor of the

plaintiff. This is contrary to our express holdings in

Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 170 (1970) and

Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).

27a

In view of our conclusion that the instruction was fatally

deficient, we do not feel called upon to pass upon the plain-

tiff’s argument that A.R.S. § 40-423, quoted supra, imposes

strict liability upon a public service corporation where it

willfully omits to do an act required by the laws of this

State. See, e.g., McCallie v. N.Y. Central Rd., 23 Ohio

App. 2d. 152, 261 N.E.2d 179 (1969).

The defendant complains of the order of the Superior

Court changing the venue of the trial action from Cochise

County to Pima County.

By A.R.S. § 12-406(A), if either party to a civil action

pending in the Superior Court files an affidavit alleging

any of the grounds specified in subsection (B), the venue

may be changed to the most convenient adjoining county.

Section (B) of § 12-406 provides as one of the grounds:

‘‘That the-convenience of witnesses and the ends of

justice would be promoted by the change.’’

The plaintiff filed an affidavit which set forth that the

plaintiff and her two minor children now resided in Tucson,

Pima County, Arizona; that counsel for both plaintiff and

defendant resided in Tucson; that the personnel of de-

fendant and members of the train crew and employee

witnesses of the Tucson division of the defendant were

all residents of Tucson; that facilities, both court and

motel, were better in Tucson than in Bisbee; and that the

employees of the defendant could obtain direct flight con-

nections from Los Angeles and San Francisco to Tucson.

Defendant in its unverified opposition to the motion

for change of venue urged:

1. That the plaintiff’s motion was untimely ;

2. That many of its witnesses resided in Cochise

County ;

28a

3. That facilities and other accommodations in the

Bisbee area were adequate; and

4. That the residents of the City of Willcox, from

which several of their witnesses were expected to

come ‘‘would be safer if they were not exposed to

the hazards of freeway driving and the metropoli-

tan traffic of the City of Tucson.’’

Defendant argues in this Court that the prejudice to the

defendant is obvious in three particulars:

‘*1, The Defendant has been effectively deprived of its

right to file a request for change of judge; and

then

2. It was forced to try the case in a county in which

it had consistently received the most venomous

publicity from the newspapers and television sta-

tions; and

3. Cochise County jurors, famikKar with the crossing,

would have realized Mr. Lueck’s negligence.’

It is not obvious to the members of this Court that the

defendant was effectively deprived of the right to request

a change of judge, or that it was forced to try the case in

a county in which it had consistently received the most

publicity and that Cochise County jurors would have been

so familiar with the crossing as to have realized deceased’s

negligence. Nor do we think the court abused its discretion

in light of the fact that the cost of the trial to the litigants

would be substantially reduced.

We now come to the final matter requiring our consider-

ation.

On February 18, 1975, defendant filed in this Court a

motion to supplement the record. The motion was based on

‘*newly discovered, relevant evidence’’ as set forth in at-

29a

tached affidavits and was filed assertedly pursuant to the

authority of Rule 75(h) of the Rules of Civil Procedure,

16 A.R.S.

We have previously expressly held under language the

same as Rule 75(h), see § 21-1826, A.C.A. 1939, that the

rule does not authorize the supplementation of the record

with evidence which might have been relevant to the issues

tried in the court below. Hughes v. Young, 58 Ariz. 349, 120

P.2d 396 (1941).

Hughes v. Young follows the general rule of wide appli-

cation that an appellate court can determine a cause only

upon the record of the court below. We said, for example,

in Potter v. Home Owners’ Loan Corporation, 50 Ariz.

285, 72 P.2d 429 (1937) :

‘‘Counsel for both plaintiff and defendant have in

their briefs, made many statements as to what did

happen, and what would have happened if the situa-

tion had been different. We, of course, cannot con-

sider such statements, being confined in our determi-

nation of the case to what is shown by the record and

the necessary and reasonable inference to be drawn

therefrom only.’’ 50 Ariz. at 289, 72 P.2d at 431.

The Arizona Supreme Court has original jurisdiction in

certain common law writs, Article 6, § 5, Constitution of

Arizona. This case, however, invokes our appellate juris-

diction. A motion for new trial filed in this Court is not

addressed to our appellate jurisdiction. Its consideration

does not call for review of any judgment or order of the

trial court. It is in the nature of an original proceeding

which this Court does not have the power to entertain.

Rodriguez v. Williams, 104 Ariz. 280, 451 P.2d 609 (1969) ;

Yerger v. Bross, 68 Ariz. 104, 201 P.2d 121 (1948). Nor

will we remand a case for a new trial based upon newly

discovered evidence, since such a motion is not properly

30a

addressed to this Court. State v. Davis, 104 Ariz. 142, 449

P.2d 607 (1969).

Indeed, it has been held under a similar constitutional

provision to Arizona’s that even the Legislature cannot

authorize the Supreme Court to receive evidence since

it contravenes the constitutional provision that the Court

has appellate jurisdiction.

** After Schmidt v. Equitable Life Assurance Society,

376 Ill. 188, 33 N.E.2d 485, 136 A.L.R. 1036, had been

docketed in this court, one of the parties undertook

to supply evidence to correct a material defect in the

record by the introduction of affidavits on motion. It

was held that subparagraph (d) [See. 92 of the Illinois

Civil Practice Act], insofar as it undertook to autho-

rize the introduction of evidence in a court of review

that had not been made a part of the record when the

_, cause was pending in the trial court, was unconstitu-

tional. If the affidavits should be assuming original

jurisdiction in reference to such affidavits, and act

which the constitution forbids in this kind of case.’’

Atkins vy. Atkins, 393 Ill. 202, 206, 65 N.E.2d 801, 808

(1946). co

By the Constitution of Arizona, Article 6, § 14, the Su-

perior Court has original jurisdiction of cases and pro-

ceedings not vested by law in another court.

The facts presented by the defendant’s affidavit and the

plaintiff’s objection to consideration of the matters con-

tained therein illustrate the practical problem inherent in

an appellate court’s consideration of matters extraneous to

the record.

It is deposed by the attorneys for the Southern Pacific

Transportation Company that the plaintiff’s reconstruc-

tion expert, A. W. Dickinson, did not hold B.A. and M.A.

degrees from Cambridge University in England and that

Sla

he had not worked for certain companies in the United

States or held certain positions, as, for example, a member

of the von Braun aerospace team, as he testified. The plain-

tiff in her objection to the supplementation of the record

asserts that due diligence on the part of the defendant

would have disclosed the matters contained in its motion

prior to the trial of this case in August of 1973, that defen-

dant did not choose to contradict his testimony by other

experts nor is it now contended that his opinions and con-

clusions are false.

Plaintiff submits a letter from one Vaughn P. Adams,

a consulting engineer and Assistant Professor of Industrial

Design at Arizona State University, to the effect that he

has reviewed the testimony of A. W. Dickinson and is of

the opinion that the methods employed by Dickinson to

determine the velocity of the locomotive and caboose were

correct and that there was no significant error either in

the methods used or the arithmetic results.

By Article 6, § 5, subsee. 5., Constitution of Arizona, this

Court is empowered to ‘‘make rules relative to all proce-

dural matters in any court.’’ Since it is palpably impos-

sible for the members of this Court to determine whether

the asserted perjury was such as to probably affect the

outcome upon a retrial, see A.L.R.3d 812, Anno: Perjury

or Willfully False Testimony of Expert Witness as Basis

for New Trial on Grounds of Newly Discovered Evidence,

we have decided to treat defendant’s motion as a timely

motion for a new trial under Rule 60(c), Rules of Civil

Procedure, 16 A.R.S.

We direct that this matter be remanded to the Superior

Court of Cochise County and the Honorable Lloyd Helm,

trial judge thereof, who, having had the opportunity to see

and hear the witness, has the necessary feel for the case.

The Superior Court shall determine, pursuant to Rule

60(c), whether the asserted newly discovered evidence could

32a

not have been discovered by due diligence in time to move

for a new trial under Rule 59(d), 16 A.R.S., and whether

it is of such a character as to give reasonable assurance

that it will work a different result upon retrial.

Upon the determination thereof, in order to obviate the

necessity of another appeal, the Superior Court shall ad-

vise this Court of its ruling. Either party will thereafter

have ten days within which to file objections in this Court

and the opposing party will have ten days within which to

respond. Whereupon this Court will either affirm the judg-

ment or reverse with an order directing a new trial, as it

deems fit in the premise.

Frep C. StRUCKMEYER, JR.

Vice Chief Justice

CoNCURRING:

JaMES Duke Cameron, Chief Justice

Lorna E. Lockwoon, Justice

Jack D. H. Hays, Justice

WituiaM A. Hoionan, Justice

33a

No. 11768-PR

Motion for Rehearing

(Caption OMITTED IN PRINTING)

INTRODUCTION

How Dw Ir Happen Tuart tHE Court Famep to Pornt Out

In Its Optrnton THat THE Jury RetTuRNED Aa VERDICT IN

FAVOR OF THE ENGINEER AND THE FIREMAN AND AGAINST THE

PLAINTIFF?

It is startling that this very important circumstance is

totally omitted from the Court’s Opinion. When this

astounding oversight is corrected by inclusion of the im-

portant fact that the jury completely vindicated the Engi-

neer and the Fireman who operated the train thus ex-

culpating their employer of negligence in the operation of

the train across the crossing, there only remains for con-

sideration the true gist of the case which was dealt with

by the Court of Appeals as follows:

‘*We are unable to agree with appellee’s contention

that the failure to install ‘the ultimate’ in crossing

safety devices in this case constitutes gross or wanton

or wilful misconduct.’’

The many serious omissions and distortions of the rec-

ord require that a rehearing with oral argument must be

granted in this case.

ALLEGED EVIDENCE OF THE WANTON AND WILFUL NEGLIGENCE

OF THE DEFENDANT SOUTHERN Paciric TRANSPORTATION

ComMPANY.

After oral argument on appeal, the Court of Appeals

upon consideration of the Briefs and records, concluded

34a

that the defendant Railroad was not guilty of wanton neg-

ligence. This Court, without hearing oral argument and

perhaps because of the lack of that assistance, relies heav-

ily and discusses in detail five separate circumstances in-

volving the operation of the train from which the jury could

conclude that negligence existed.

Contrary to the implication created by the Opinion, the

jury did not conclude that negligence existed in the opera-

tion of the train. On the contrary, it vindicated the Engi-

neer and the Fireman by its verdict in their favor and it is

the duty of the Court to take the facts in the light most

favorable to uphold this jury verdict to the same extent

that it would employ the same principle to uphold the

verdict against the Railroad.

After omitting any reference to the jury verdict for

the Engineer and the Fireman, the Court mistakenly states

that the view of the approaching motorist is obstructed

both to the right and to the left as the crossing is ap-

proached from the north. While the station, located to the

right of the driver, obstructs his view in that direction,

there was no obstruction to the driver’s left. It was in this

quadrant that the train approached the crossing. While

there are some trees in the park, the photographs in evi-

dence show beyond any question that there was an open

and adequate view for the driver of the truck in question

had he looked, to have seen the train approaching. [Def.

Ixh. C-9, 12, 13] An eye witness who had to look through

the whole park had no trouble in seeing the approaching

train. [10 TR 178, 182]

The Court's holding that there was sufficient evidence

of gross negligence was based upon seven specific areas.

1. Violation of City Speed Limit.

As set forth in the many Affidavits on file herein, this

testimony was based solely upon the perjured testimony of

35a

Mr. Allan William Dickinson. The Court unconditionally

adopted his testimony, saying:

‘‘The plaintiff’s reconstruction expert testified that in

his opinion because of the distance required to bring

the work train to a stop and other factors, it was

traveling at a speed up to 70 MPH. If the work train

had been traveling at 40 MPH according to the same

expert, there would have been no collision.’’

It is beyond belief that a court would allow a Three

Million Eighty Thousand Dollar verdict to be affirmed upon

the testimony of such an accomplished perjurer, who is

now awaiting trial for identical perjury in a California

case against the Southern Pacific. [See Appendix]

Furthermore, both the Engineer and the Fireman testi-

fied to speeds well within the speed limit established by the

City of Willcox and a jury verdict was rendered in their

favor. [4 TR 54, 59; 5 TR 13]

2. Speed Restriction by Virtue of Yellow Signal.

This testimony came from one brakeman who was seated

in the caboose and said the signal was yellow; however, the

Engineer, in whose favor the verdict was rendered, spe-

cifically testified that the signal was green. [4 TR 54] If

the Court takes this testimony in the light most favorable

to upholding the jury verdict in favor of the Engineer,

there could not have been a violation of the Company rule.

3. Alleged Violation of Rule 17(D) of the Company’s

Rules of Procedure.

Here, again, is another incredible distortion of the record

by the Opinion writer. Rule 17(D) reads as follows:

‘‘Oscillating white light on engine so equipped must

be operated during stormy weather day and night,

foggy weather during daylight hours only and must be

36a

operated approaching road crossings at grade both

day and night under all conditions.’’ (emphasis sup-

plied)

The Opinion left out the specific statement ‘‘on engine

so equipped.’’ Not all engines are equipped with white

oscillating lights on both ends even though the engines

were designed to run both frontwards and backwards. It

is not a violation of this Rule for the engine to be operated

in reverse.

Furthermore, even if the failure to turn the lights on

when it was faced away from the crossing were deemed

by someone unfamiliar with railroad operation to be a

violation of the Rule, it could not under any circumstances

have been a proximate cause of the accident in question.

To claim that an alleged violation of a Southern Pacific

work rule constitutes a criminal law violation (A.R.S. § 40-

855) raises a serious constitutional question which is cov-

ered in Paragraph V hereof.’

4. Engineer’s Alleged Inability to Control Train.

These allegations of negligence made against the Engi-

neer in his operation of the train because the train was

running in the backwards position were made to the jury

and the jury did not buy them—they rendered a verdict in

favor of the Engineer. They do not form a valid basis for

negligence against the defendant Southern Pacific.

Furthermore, the Court’s citation of Lester v. Atchinson,

Topeka & Santa Fe Ry. Co., 275 F.2d 42 (10th Cir. 1960)

* A.R.S. § 40-423 is not even applicable as it refers to ‘‘unlawful’”’

conduct or failure to meet requirements of :

‘*. . . the constitution or laws of the state, or orders of the

commission. .. .”’

Rule 17(D) does not fall within any of these categories. This

section has been held by the Court to merely reaffirm common law

rules of liability and not create any additional rights.

Cole v. Arizona Edison Co., 53 Ariz. 141, 86 P.2d 946 (1939)

37a

which strongly implied a similarity of fact situations, was

misleading at best. In the Lester case:

‘“‘The train consisted of a caboose, seven heavily

loaded cars and an engine and was traveling cross

country with the caboose as the lead car, followed by

the seven freights and pushed by an engine.’’ (p.44)

The train in question was not a ‘‘short and heavy’’

train, the operation of which was ‘‘impaired’’ as in the

Federal case and it is improper to compare them. The only

comparison is that they were both backing and this seg-

ment of the Opinion, if it is not changed, will be cited hence-

forth to establish that any backing movement is grounds

for claiming wilful and wanton negligence.

5. Alleged Deliberate Maintenance of Speed and Dis-

regard of Observed Danger.

The Fireman was quite confused in his testimony, which

is not unusual, and the times and stopping attempts as

testified to by him are inconsistent. [5 TR 55-68] Notwith-

standing the inconsistencies, the jury returned a verdict in

his favor. If the jury found against the plaintiff and for

the Engineer and the Fireman, how can this Court in good

conscience say their acts or omissions constitute the basis

for finding their employer guilty of negligence, much less

gross negligence?

6. Alleged Confusion Resulting From One Train Follow-

ing Another.

The Court has taken certain testimony out of context

and attempted to apply it to a situation substantially dif-

ferent from that which the witness was testifying about.

The trap situation that existed on the peninsula between

San Jose and San Francisco was not in any way similar

to Maley Street in Willcox, Arizona. The evidence, with-

out contradiction, showed the California crossings involved

38a

two mainlines where a train going south would activate

signals, an automobile would stop, and as the train cleared,

even with the signals not stopping, the auto would suddenly

pull forward into the path of a train which was going north

on the other tracks.

That trap situation differed substantially from Maley

Street where:

1) The trains in question were both going the same

direction ;

2) The car of the decedent never stopped and then

pulled out;

3) There was not a continuous ringing of the bells

and flashing of signals.

The only witness to testify about the starting of the

signals definitely stated that he heard the bells come on:

[10 TR 177]

**Q: Did you have occasion to notice whether or not

there were any kinds of signals or bells at Maley Street

and the Southern Pacific track that warned oncoming

motorists that a train is coming?

A: Well, I heard the bell come on... .’’

Even assuming the facts most favorable to the plaintiff,

the train preceding the one in question was at least a min-

ute and a half to two minutes in advance which would have

meant the signals would have been off for a little over a

minute to a minute and a half prior to commencing again.

[8 TR 148]

Plaintiff’s own witness after all forms of leading ques-

tions were put to him still maintained: [2 TR 190]

‘Q: (By Mr. Haralson) Maybe my question wasn’t

clear. Have you ever seen, during and around that

39a

time, situations where the lights might be flashing,

without there being any trains visible?

A: Only when they were working on the lights.’’

These facts do not provide a basis for a finding that

there was an unreasonable risk of bodily harm because of

the high degree of probability of some motorist being con-

fused. All the motorist in question had to do was obey thé

signals by stopping his truck when they started flashing

red as he approached the crossing. That was, is and can

be the only proximate cause of the accident in question.’

7. Failure to Circulate the Kruttschnitt Report.

No one contended in the lower court or contends now

that gates aren’t generally a better warning device than

flashing lights. The real issue is not about notification but

whether this crossing was of such a nature that it was

gross negligence not to have installed automatic gates prior

to the accident in question. The Appellate Court stated it

best when it held:

‘‘We are unable to agree with appellee’s contention

that the failure to install ‘the ultimate’ in crossing

safety devices in this case constitutes gross or wanton

misconduct.’’

No one testified that the crossing protection here was

such as to create a dangerous crossing, only that gates

were better than flashing lights without gates.°

2 The answer to all these claims of a trap are contained in the

testimony of an eye witness (Mr. Womack) who said in response

to a question concerning the working of the signals when no train

was in sight:

‘* |. you see people standing up there and look both ways,

and if you don’t see no train you go across. .. .’’ [10 TR 188]

? Even Mr. Hamblin, the representative of the State Highway

Departmen: recommended the installation of short arm gates,

40a

This crossing, contrary to the misstatement in the Opin-

ion, had a good view in the quadrant from which the train

approached the crossing. It was equipped with numerous

flashing red lights warning of the approach of the train,

which lights had been off a minimum of a minute to a min-

ute and a half prior to their commencing to warn of the

approach of the train in question. The train itself emitted

a whistle so loud that eye witnesses located approximately

a block away had to stop their conversation while it went

by. [11 TR 27-28] (Curiously, all of these facts were

omitted from the Court’s Opinion.)

To hold that failure to have gates in addition to the

above warnings resulted in a high degree of probability

that serious harm would occur is the nonsequitur of the

year.

There never was any contention im this case that all

the many warning devices were not working properly at

the time of the accident. This means that in additiun to the

loud repeated warning from the train, six (6) flashing red

lights, together with loud-sounding bells which could be

heard over a block away were telling the motorist to

‘*Stop.’’ It is under all these admitted facts that failure

to install the ultimate in crossing warning devices is not

required because there is no high degree of probability that

bodily harm will occur under those circumstances. South-

ern Pacific Co. v. Baca, 77 Ariz. 173, 268 P.2d 968 (1954).

Furthermore, as Mr. Kruttschnitt testified:

‘*Q: Did you have an opinion as to the effective warn-

ing capabilities of the cantilevered flashing lights?

A: They are extremely effective.’’

When questioned by Mr. Haralson about these so-called

trap situations, similar to the San Francisco area, Mr.

which, of course, would not have reached into the lane in which

the decedent was driving. [Pl. Exh. 2-II, 7]

4la

Kruttschnitt clearly and succinctly put the matter in per-

spective: [8 TR 148]

‘“‘Q: Would you agree, sir, in that type of situation,

gates would have a very major factor in reducing the

possibility of injury in that type of situation? You

would agree with that, sir?

A: Not necessarily and I can explain that .. . with

almost any type of control circuit, the first train after,

very shortly after it passes the crossing, will cause the

signals to become dead as you put it. They will cease

to flash. Then the following train will again activate

them.

Q: Uh-huh?

A: This to me is adequate warning to the motorist.

Q: And you are making the assumption, sir, that the

motorist first of all sees them turned off and then sees

them turned back on; aren’t you sir?

A: Not necessarily. I am making the assumption that

he first sees them dark and then sees them flashing.’’

The testimony in this case, of course, establishes that

they were off and then came on as the truck in question

slowly approached the crossing. [10 TR 177]

Furthermore, the Opinion omits any reference to the

fact that there is no established standard among states and

many states including the Arizona State Highway Depart-

ment on occasion have opposed or refused to allow the con-

struction of gates at crossings. [9 TR 66; 10 TR 34-38]

The Court’s failure to distinguish, overrule or much

less, cite, Southern Pacific Co. v. Baca, supra, is incom-

prehensible. The Baca case is factually right on point and

the Court’s only motive must have been ‘‘if we don’t talk

about it, maybe it will go away.”’

While the Southern Pacific Transportation Company

may well have made an error in either misplacing the doc-

42a

ument when it reached the division level or failing to dis-

burse it to all persons in question, these are not the ingre-

dients of gross negligence. As was held in Kemp v. Pinal

Co., 13 Ariz.App. 121, 474 P.2d 840 (1970):

‘**A person can be very negligent and still not be guilty

of gross neglige :e.’’

If this crossing, similar to the crossings involved in

Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 912

(1963) and Barnes v. Southern Pacific Co., 3 Ariz.App. 483,

415 P.2d 579 (1966) had no automatic warning lights and

bells activated by predictors so as to give a uniform warn-

ing time of 20-30 seconds, one might conceivably argue that

this was a case of gross negligence. However, the failure

to substitute automatic gates for cantilever flashing lights

and flashing 8 lights does not and cannot constitute gross

negligence. Southern Pacific Co. v. Baca, supra.

SuMMARY

The seven grounds cited by the Opinion for upholding

the finding of gross negligence fail completely in this re-

gard. The first five all rely upon testimony and facts con-

cerning the operation of the train by the Engineer and

Fireman, in whose favor a verdict was returned. Using

the Court’s own standard, these facts must be taken in a

light most favorable to upholding the jury verdict in their

favor.

The last two grounds do not provide any basis whatso-

ever for gross negligence. This was not a trap situation

similar to that in California as a reading of the Transcript

would have reflected.

Furthermore, this crossing was adequately equipped with

automatic electronic devices of such a nature that there

was no reason to believe that a person using it with the

slightest degree of care would have any risk at all of in-

curring substantial harm. To say that the failure to sub-

43a

stitute automatic gates for the lights and bells which were

working at the time of the accident constitutes gross neg-

ligence is only to evidence the animosity behind this

Opinion.

Il.

Punitive DAMAGES

It is indeed ironic that a railroad which has led the na-

tion in the development of safety devices for crossings such

as the predictors and is the nation’s leader in the installa-

tion of crossing gates should be the first railroad to be hit

with such a monstrous and unsupported punitive damage

award. [8 TR 110-11] To uphold this award is to abrogate

the doctrine of judicial conscience and to hold that anything

a jury does untouchable.

This Court has now decided that the failure of a railroad

to upgrade the crossing warning devices from the second

best (flashing 8 and cantilevered lights with bells) to the

ultimate (automatic gates) constitutes gross negligence. In

light of this holding, every railroad in the United States

is required now, regardless of economic conditions or other

demands, to install gates or run the risk of having their

assets confiscated by a judicial system which is without a

shockable conscience in these cases. It is particularly dis-

tressing when the record in this case is clear that notwith-

standing Mr. Kruttschnitt’s report, many states felt that

gates were not the ideal warning device and did not wish

them installed:

1. The state of Texas (portions of which fall within

the Tucson Division) does not believe in automatic

gates and simply won’t allow them. [10 TR 37-38]

2. Certain Arizona municipalities oppose the installa-

tion of gates. [10 TR 34]

3. The Arizona State Highway Department would ap-

prove only the installation of flashing lights, not

gates, on state highways in Florence, Arizona. [9

TR 66]

44a

Had the jury returned a verdict for $80,000 it would

have been one thing, but to return a verdict for $1,080,900

can lead fair minded people to only one conclusion—the

jury was out to get the Southern Pacific and the Supreme

Court evidently wishes to put its stamp of approval on this

vendetta. The obvious reason behind the jury’s verdict was

provided by the trial court:

‘*, .. there is one factor that’s not—is not in evidence,

for which the Court would think might have had some

effect on these jurors. I know the Court has been aware

of it for a long time, and that is the number of acci-

dents that have been—that the Southern Pacific Com-

pany have been involved in in this area over a period

of a fairly short period of time, and the criticisms that

have gone on in the press about those. I am sure some

of those jurors have probably read about those things

and the conflict with the Corporation Commission, all

those things go to make up the whole picture of say

justification for the verdict of the jury.’’ [October 5

1973; 13 TR 42]

It is beyond belief that a Court can affirm an award of

punitive damages for any amount, much less $1,080,000,

which is based upon perjured testimony and the logic set

forth by the trial court.

ITI.

How Excesstve Dors A Wronerut DeatH Awarp Have To

BE Untit It Becomes SurricientLy OUTRAGEOUS TO

Warrant A New Triav?

The Court acknowledging that the projected lost income

of $281,836 would not support the outrageous verdict in

this case, stated:

"ae is therefore apparent that the deceased’s earning

capacity over his life expectancy of 41 years was pre-

dicated on the assumption that Lueck could be em-

45a

ployed as an expert welder or journeyman concrete

worker.”’

The Court goes on to say that the jury was not bound

to accept that but that they could base their award on other

factors such as his maintaining and establishing a ‘‘suc-

cessful going business at the age of 30, which evaluation

would be much greater than the purely statistical approach

used by Heller.’’

These assertions are unsupportable by the record on

appeal. The Court issued a challenge to appellant based on

Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 89 S.Ct.

331, 21 L.Ed2d 309 (1968) to indicate the evidence which

will disclose the excessive nature of this award. THe CHaL-

LENGE ACCEPTED.

Mr. Lueck’s income tax returns reflected net income for

the years in question as folows:

1961 $ 1,676.87

1962 4,417.57

1963 5,834.37

1964 1,121.61

1965 (12,347.38) loss

1966 (489.95) loss

Tora, Income For 6 Year Pertop — $213.09

(For the same period of time his total net loss from the

construction business which the Court glowingly describes

as ‘‘suecessful’’ was $5,953.24)

The Opinion cites as further evidence of his possible

success the fact that he had acquired by the time of his

death: ‘‘3 mixers, 3 dump trucks, 3 loaders, a rock crusher,

a steam shovel and blade, and a batching plant.’’ The

Opinion omits the fact that these items were heavily en-

cumbered by loans and were not of any substantial net

value. One cannot help but be struck by the consistency

with which the Court omits essential facts from the Opinion.

46a

If the defendant were negligent and if such negligence

caused the death of Mr. Lueck and there were no contribu-

tory negligence present, then the defendant should pay

that amount of money which would reasonably and justly

compensate the deceased’s survivors for their loss, That

amount of money is not Two Million Dollars. Even if the

Court were to double the excessive pecuniary damages of

$281,836, the figure would still be less than $600,000. This

Court has now said that the jury was justified in awarding

$1,718,137 for general damages representing loss of love,

affection, comfort, guidance, companionship, supervision

and anguish. To sustain this outrageous award, it cites gen-

eral statements from the record tending to indicate prob-

lems of a temporary and certainly not a permanent nature.

Furthermore, the Court’s reliance on Compania Domini-

cana de Aviacion v. Knapp, 251 S.2d 18 (1971) shows that

this Court has evidently chosen to go along with the Florida

court in giving up all its supervisory power over jury ver-

dicts. The message is clear: from henceforth, no amount

of money, punitive or compensatory, is too much.

Having accepted the challenge to show (and we think

successfully) the excessive nature of both the punitive and

compensatory awards, we in turn challenge the Court to

make the effort to consider the following questions which

flow from its Opinion:

1. Are there no guidelines anymore in the amount of

damage awards?

Can the jury give anything it wishes without any

restriction?

3. Is the tort system only interested in creating instant

millionaires out of plaintiffs and their attorneys?

4. Does anyone on the Court honestly believe that such

a compensatory damage verdict would have been

rendered against a non-target defendant?

A thoughtful answer to these questions will go a long

way to leading to the granting of this Motion and a re-

47a

hearing with oral argument so that the issues may be fully

and fairly considered by the Court.

If the Court feels that, ‘‘We are not convinced the ver-

dict is so outrageously excessive that it compels the con-

clusion that it must have been based on passion and pre-

judice,’’ then the Court is tacitly admitting by this language

that it is sufficiently excessive that there should be a sub-

stantial remittitur ordered. Why has the Court failed to

address this point?

SuMMARY

It borders on the ludicrous to believe that a verdict for

Two Million Dollars can be affirmed for the death of a man

whose business was on the verge of bankruptcy and which

had lost money the two years prior to his death. It is even

more ridiculous when that death was brought about by the

decedent’s failure to heed the numerous clearly visible and

audible warnings telling him that a train was approaching

and that he must stop his vehicle so as to avoid an accident.

Was Tue DerenDANT’s Opsection To PiarntiFr’s [Nstruc-

tion No. 8 Tuat It ALLowep THE Jury To Frxp Gross

Necucence Even Tuovucn It Founp No NEGLIGENCE,

LEGALLY SUFFICIFNT?

Plaintiff’s Instruction No. 8 as given, stated:

‘“‘If you find that the defendant was not negligent or

that the defendant’s negligence did not cause Bill

Lueck’s death, your verdict must be for the defendant

unless you find the defendant guilty of wilful and wan-

ton misconduct about which I will instruct you later. ..’’

[12 TR 109-110] (emphasis supplied)

To this instruction, which is demonstrably an incorrect

statement of the law, Mr. Higgins objected as follows:

48a

**Dealing with No. 8, I will object to the giving of In-

struction No. 8. This Instruction misstates the law in-

sofar as it implies that if you find the defendant guilty

of wilful and wanton misconduct then you do not have

to find that the defendant is also guilty of negligence.

It presupposes that such an act would not be a neg-

ligent act as well as places an undue emphasis on the

situation and determination of wilful and wanton mis-

conduct. ...’’ [11 TR 83-84]

While the courts have held that there is a difference in

kind between gross negligence and ordinary negligence,

there has never been a decision in this state holding that a

jury, after determining that there has been no negligence

whatsoever in the case can then go on and make a finding

of wilful and wanton misconduct. To the contrary, even this

court has specifically held:

**. .. 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)... .”’

Bryan vy. Southern Pacific Co., 79 Ariz. 253, 286 P.2d

761 (1955)

The Court seeks to lump this specific objection to Instrue-

tion No. 8 under the objections made to 26(a) and 34, which

although somewhat general in nature were still sufficiently

clear that the Court should have considered this matter of

such great importance upon the merits. Furthermore, if the

Court will refer to the Transcript, Volume 11, page 78,

it will see that the trial court stated:

‘*The record may show counsel and the court in cham-

bers. Court and counsel have spent several hours re-

viewing the Instructions submitted by the parties; that

they have argued the same and the authorities therefor

and this is the time for making the record of granting

49a

refusal of modification of Instructions. You may pro-

ceed, Mr. Haralson.”’

The purpose of an objection as set forth in the Court’s

Opinion is to apprise the trial court and the party offering

the Instruction of the nature of the objection. That was

accomplished in this case.

Plaintiff’s Instruction No. 8 is, was and will always

be objectionable on the grounds that it tells the jury that

you can find gross negligence without having found negli-

gence. If the Court now believes that such is the law, the

Court should state it loud and clear because it ” come as a

great surprise to the practitioners in this State.

It is inconceivable that any court would make such an

unsupportable claim with reference to the objection made

to this Instruction. It is even more inconceivable that they

would pick such a fallacious ground upon which to avoid

coming to grips with a serious legal problem, and particu-

larly in a case involving millions of dollars.

Plaintiff’s Instruction No. 8 was prejudicially wrong and

the objection to it was stated distinctly with the grounds

therefor. This Court can not longer avoid coming to grips

with this issue.

ConsTITUTIONAL Questions Ratsep By THE

Covurt’s Oprxion

1. Violation of a Company Rule Constitutes a Criminal

Offense under A.R.S. § 40-855.

This interpretation raises serious constitutional ques-

tions on the ground of ordinary intelligence as to what

conduct is forbidden. Under the Court’s Opinion virtually

any conceivable act could endanger human life and safety

and therefore be a crime. In the case of Papachristou v.

50a

City of Jacksonville, 405 U.S. 156, 31 L.Ed.2d 110 (1972)

the court held a vagrancy statute void for vagueness on the

basis it did not sufficiently inform a person of ordinary

intelligence as to what conduct was forbidden. In Smith v.

Gouguen, 415 U.S. 566, 39 L.Ed.2d 605 (1974) the court held

a Massachusetts statute void for vagueness which forbade

any one to treat the flag ‘‘contemptuously.’’ The theory

behind these cases is that it violates due process for a

statute to fail to give fair notice of the offending conduct.

In Conally vy. General Construction Co., 296 U.S. 385, -

70 L.Ed. 322 (1925) the court held a statute requiring a

contractor under criminal penalty to pay his employees

‘*not less than the current rate of per diem wages in the

locality where the work is performed”’ to be void for vague-

ness. Likewise, in U.S. v. Cohen Grocery Co., 255 U.S. 81,

65 L.Ed. 516 (1920) the court held a federal act void for

vagueness when it made it a crime for any person to wil-

fully make ‘‘any unjust or unnecessary rate or charge in

handling or dealing in or with any necessities.’’

Here, A.R.S. §40-855 gives no indication to a railroad

employee of ordinary intelligence as to what is meant by a

‘*violation or omission of duty whereby human life or safety

is endangered.’’ This could cover any number of acts or

omissions, therefore, A.R.S. §40-855 as interpreted by the

Opinion is void for vagueness.

2. The Thrust of the Opinion Requiring Railroads to In-

stall Crossing Gates at all Crossings in Arizona Con-

stitutes an Unreasonable Burden on Interstate Com-

merce.

While states can impose relatively light burdens on in-

terstate commerce, they are prohibited from putting too

great a burden on the free flow of interstate commerce.

Southern Pacific Co. vy. Arizona, 325 U.S. 761, 89 L.Ed.

1915 (1945). That case, as the Court is aware, involved

the attempt by Arizona to limit the length of trains in inter-

5la

state commerce. For a case even more on point, See: Bibb

v. Navajo Freight Lines, 359 U.S. 20, 3 L.Ed.2d 1003 (1959)

in which the court in balancing the local health or safety

interests against the burden on interstate commerce invali-

dated a state requirement of installing ‘‘contour’’ mud

guards on all motor carriers.

The required installation of gates at all crossings (par-

ticularly mainline crossings) or be in jeopardy of the result

sanctioned by the Opinion constitutes an undue burden on

interstate commerce and cannot pass the constitutional test.

ConcLusIon

The Court’s Opinion has now created a situation where

any railroad operating through Arizona had best put in

automatic gates at every crossing or preferably do away

with the crossings by having grade separations no matter

what the cost or to whom. The alternative is to be sub-

jected to confiscatory awards such as the one the Court has

put its stamp of approval on in this case. Such a result will

have far reaching and long lasting economic ramifications

in this State.

When combined with the legal errors and the numerous

unexplained omissions from the Opinion, it requires that

this Court grant a rehearing with oral argument to fully

discuss these errors and omissions.

To do anything less would constitute the final and most

unexplainable omission.

52a

Respectfully submitted,

Bitsy, THompson, SHoennam & Waryock, P.C.

By /s/ Ricuarp M. Bray

Attorneys for Appellant

9th Floor Valley National Building

Tueson, Arizona 85701

Servep sy Mart this 9th

day of May, 1975, on:

D. Date HaraLson

Barper, Haratson & Kinerk

Attorneys for Appellee

Rosert G. Becam

Tue Association or TriaL LAWYERS

or America, Arizona Brancu

Amicus Curiae

53a

MUNICIPAL COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA

MT. DIABLO/MARTINEZ JUDICIAL DISTRICT

Tue Peorie or Tue State or CALIFORNIA

against

WuuuM Artuvr Dickinson, Defendant(s)

CRIMINAL COMPLAINT

(Feroxy)

(Firrep Marca 19, 1975)

StaTe or CALIFORNIA

County or Contra Costa, ss.

The undersigned, being sworn, on information and be-

lief accuses Wruuiam Artuvur Dickrnson, defendant(s) of

the crime of: Felony, to wit: Viotation or Section 118 or

THE CALirorNIA Prenat Cove (Perjury) committed as

follows, to wit: That said defendant(s) on or about

November 2, 1973, at Martinez in Contra Costa County,

State of California, did then and there unlawfully, wilfully

and feloniously, having taken an oath that he would testify

truly in an action then pending in the Superior Court of

Contra Costa County, did, contrary to such oath, state as

true, material matters which he knew to be false, all of

which is contrary to the form, force and effect of the

Statute in such case made and provided, and against the

peace and dignity of the people of the State of California.

And deponent therefore prays that a warrant may be

issued for the arrest of the said defendant(s).

(Name) /s/ W. Sam Soak

(Address) 34 St. Stephen Dr.

Oneida, Calif. 94563

Subscribed and sworn to before me on March 18, 1975.

/s/ [illegible]

Deputy District Attorney

5Sta

THE MUNICIPAL COURT OF THE MT. DIABLO JUDICIAL DISTRICT

COUNTY OF CONTBA COSTA, STATE OF CALIFORNIA

COMMITMENT AFTER PRELIMINARY

EXAMINATION (P.C. 872-875)

It appearing to me that the offense in the within com-

plaint mentioned, Felony to wit: violation of section 118

Calif. Penal Code (Perjury) has been committed, and that

there is sufficient cause to beliéve the within named Wn-

LiaM ArTHUR Dickinson guilty thereof, I order that —he—

be held to answer the same, and be admitted to bail in the

sum of Ten TxHovsanp Dollars and be committed to the

_— of the County of Contra Costa until giving such

Dated April 10, 1975.

To apepar in Superior Court, Crim. Dept.; April 22,

1975 at 9:00 A.M.

/s/ [illegible]

Judge of said Municipal Court

(Seay)

55a

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

No. 18184

Tue Peorte oF THE State oF CALIFORNIA

against

Wu Arrave Dickinson, Defendant

INFORMATION

1) 118 PC

(Frcep Aprit 21, 1975)

In the Superior Court of the State of California,

in and for the County of Contra Costa:

The District Attorney of the County of Contra Costa

hereby accuses Witu1aM Artuvur Dickson, defendant of

the crime of Felony, to wit, violation of Section 118, Ca.t-

FORNIA PENAL Cope (Perjury) committed as follows, to wit:

That said defendant on or about November 2, 1973, at Mar-

tinez in Contra Costa County, State of California, did then

unlawfully, willfully and feloniously being a person who

having taken an oath that he would testify truly before a

competent tribunal, to wit: Department 8, Superior Court

of Contra Costa County, Judge Robert Cooney presiding,

in a case in which such an oath may by law be administered,

to wit: the trial of Simmons vs. Southern Pacific Trans-

portation Company, etal, County of Contra Costa Civil

Action Number R-18232, did unlawfully, willfully and fel-

oniously and contrary to such oath, state as true material

matters concerning his identity, education, background and

experience which he knew to be false.

Wriuium A. O’MaLiey

District Attorney

/s/ Wuu1am H. Bartiett

William H, Bartlett

Assistant District Attorney

56a

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

Date April 22, 1975 ; Dept. 5

Attn. Richard P. Calhoun, Judge

M. Cramlett, Clerk

Tanya Powers, Reporter

Present:

Dep. D.A. Saul Feiler

Dep. Publ. Def. Marjorie Madonne

Action No. 18184

PEOPLE OF THE STATE OF CALIFORNIA

vs.

Wurm Artuur Dickinson, Defendant

Nature of Proceedings:

ARRAIGNMENT—PLEA OF NOT GUILTY

SET FOR TRIAL—MOTION TO

( ) DISMISS ( ) SUPPRESS EVIDENCE

With the consent of the defendant and the District

Attorney, the Court fixes June 16, 1975 at 9:00 am. as

the time for trial by jury of this matter. The Court further

fixes 6/6/75 at 1:30 p.m. as the time for pretrial confer-

ence. The Court fixes June 12, 1975 at 9:00 a.m, as the

time for readiness conference.

(x) Defendant makes a motion to dismiss —— of the ——

Information, pursuant to Section 995 of the Penal

Code.

( ) Defendant makes a motion to suppress evidence, pur-

suant to Section 1538.5 of the Penal Code.

(x) The Court grants the defendant’s motion to lower

bail to $1,000.00.

57a

The Court orders that Points and Authorities be submit-

ted by defendant prior to May 21, 1975 and by the District

Attorney prior to June 4, 1975, and fixes June 6, 1975 at

1:30 p.m. at as the time to hear arguments on said motions.

Defendant is ( ) released on bail ( ) released on O.R.

(x) remanded.

J. R. Otsson, County Clerk

By /s/ M. CRAMLETT

Deputy County Clerk (Court Clerk)

CrrminaL MINUTES

Arraign—Plea—Set for Trial/Motions

o8a

Bitsy, THompson, SHornnam & Warnock, P.C,

Ninth Floor Valley National Building

2 East Congress Street

Tueson, Arizona 85701

Telephone (602) 792-4800

Attorneys for Appellant Southern

Pacific Transportation Company

IN THE SUPREME COURT OF THE STATE OF ARIZONA

SouTHerN Paciric Transportation ComPany,

a Delaware corporation, Appellant,

vs.

MELANIE Lvecx in her individual capacity and as surviving

widow of Wiiu1am T. Lueck, deceased, Appellee.

Request for Oral Argument

Comes Now the appellant Sovrnern Paciric Transpor-

TATION Company and requests that the Supreme Court

grant oral argument in connection with the Motion for

Rehearing.

Bitsy, THompson, SHornnarr & Warnock, P.C.

By ‘‘Original Signed by Richard M. Bilby”’

Attorneys for Appellant

9th Floor Valley National Building

Tucson, Arizona 85701

Servep By Mar this 9th day of May, 1975, on:

D. Date Haratson

Barser, Haratson & Kinerxk

Attorneys for Appellee

Rosert G. Becam

THe Association or Tria, LAwyers

or America, ArIzoNA BRaNcH

Amicus Curiae

59a

(Caption OmitTep 1n PrrntINne@)

The following action was taken by the Supreme Court

of the State of Arizona on June 3, 1975, in regard to the

above-entitled cause:

‘‘OrpereD: Motion for Rehearing—Denied.

FurrHer Orperep: Striking the pleadings in support of

said motion as being disrespectful and abusive.

FurrHer Orperep: Statement of Costs approved in the

amount of $820.00.’’

Mandate enclosed herewith.

Currrorp H. Warp, Clerk

By /s/ Mary Ann Hopxins

Deputy Clerk

To: Harold C. Warnock, Esq. and Richard M. Bilby, Esq.,

Bilby, Thompson, Shoenhair & Warnock, 2 E. Con-

gress, 9th Floor, Tucson, Arizona 85701

D. Dale Haralson, Esq., Barber, Haralson, Giles &

Moore, 32 North Stone, Suite 703, Tucson, Arizona-

85701

Robert G. Begam, Esq., The Association of Trial

Lawyers of America, Arizona Branch, 1400 Arizona

Title Building, Phoenix, Arizona 85003

Hon. Lloyd C. Helm, Judge of the Superior Court of

Cochise County, Cochise County Courthouse, Bisbee,

Arizona 85603

Hon. Ben C. Birdsall, Presiding Judge of Pima Coun-

ty, Pima County Courthouse, Tucson, Arizona 85701

Mrs. Elizabeth Urwin Fritz, Clerk of the Court of

Appeals, Division Two, 415 West Congress, Tucson,

Arizona 85701

West Publishing Company, 50 West Kellogg Boule-

vard, St. Paul, Minnesota 55102

60a

Mandate

(Caption OmitTep 1x PrintINc)

To: The Honorable Superior Court for Pima County,

Arizona, in relation to Cause No. 153887

GREETINGS:

The above cause was presented in your Court and was

brought before the Court of Appeals, Division Two, in the

manner prescribed by law. That Court rendered its

Opinion and caused the same to be filed on the 11th day

of July, 1974.

A Petition for Review was Granted by this Court on the

28th day of January, 1975. This Court rendered its Opinion

and caused the same to be filed on the 25th day of April,

1975.

A motion for rehearing was timely filed and was denied

by order of this Court on the 3rd day of June, 1975.

Now, Tuererore, You Are ComManpep that such pro-

ceedings be had in said cause as shall be required to

comply with the Opinion of this Court, a copy of the

Opinion being attached hereto,

Witness, Toe Honoraste James Duke Cameron, Chief

Justice of the Supreme Court of the State of Arizona, this

4th day of June, 1975.

Cuirrorp H. Warp, Clerk

By /s/ Mary Ann Hopxrins

Chief Deputy Clerk

6la

T-A-X-A-T-I-O-N

Costs or APPELLEE

Clerk, Court of Appeals Filing Fee $15.00

Clerk, Supreme Court Filing Fee 15.00

Appellee Answering Brief Preparation and

Printing -_, 790.00

Total Costs $820.00

The original of the foregoing Manpate and copy of the

Opinion of the Court were mailed to the Clerk of the

Superior Court of Pima County, Arizona, this 4th day

of June, 1975. A copy of the Manpate was mailed on said

day to Bilby, Thompson, Shoenhair & Warnock; Barber,

Haralson, Giles & Moore; The Association of Trial Law-

yers of America, Arizona Branch; Hon. Lloyd C. Helm,

Judge of the Superior Court of Cochise County, Trial

Judge; Hon. Ben C. Birdsall, Presiding Judge of the

Superior Court of Pima County; Clerk of the Court of

Appeals, Division Two; Mrs. Edna Blank, Court Adminis-

trator of Pima County.

Currrorp H. Warp, Clerk

By /s/ Mary Ann Hopkins

Chief Deputy Clerk

62a

(Caption OmitTep 1n Printine)

Mrs. Frances C. Gibbons, Clerk

Superior Court of Pima County

Pima County Courthouse

Tucson, Arizona 85701

Re: Southern Pacific Transportation Company

v. Melanie Lueck ete.

Supreme Court No. 11768-PR

Court of Appeals No. 2 CA-CIV 1578

Pima County No. 143887

Dear Mrs. Gibbons:

Enclosed herewith is the Mandate along with a copy of

the decision handed down by this Court in the above-

referenced matter, We are also returning your records

as follows:

Instruments—3 parts

Minute Entries

Reporter’s Transcripts (21 volumes)

Depositions (31 volumes)

Exhibits (as listed on your Exhibit List

dated July 30, 1973)

Please sign the enclosed copy of this letter and return

the same to this office as our receipt.

Very truly yours,

Currrorp H. Warp, Clerk

By /s/ Mary Ann Hopxtns

Chief Deputy Clerk

ald

Enclosures

63a

ec: Harold C. Warnock, Esq. and Richard M. Bilby, Esq..

Bilby, Thompson, Shoenhair & Warnock, 2 E. Con-

gress, 9th Floor, Tucson, Arizona 85701

D. Dale Haralson, Esq., Barber, Haralson, Giles &

Moore, 32 North Stone, Suite 703, Tucson, Arizona

85701

Robert G. Begam, Esq., The Association of Trial

Lawyers of America, Arizona Branch, 1400 Arizona

Title Building, Phoenix, Arizona 85003

Bilby, Thompson, Shoenhair & Warnock, 2 E. Con-

ald

64a

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

Supreme Court No. 11768-PR

No. 143887

Mevanre Lvecx in her individual capacity and as surviving

widow of William T. Lueck,Plaintiff,

vs.

SouTHERN Paciric TransportaTion Company, a Delaware

Corporation, Defendant.

Report and Decision

Court of Appeals

No. 2 CA-CIV 1578

The Supreme Court of the State of Arizona having re-

manded the above entitled matter to this Court for de-

termination of certain matters, the trial Court reports as

follows:

In discussing briefly some of the matters considered by

this Court in making the determination required by the

Mandate of the Supreme Court, this Court will refer to

the question of whether or not, pursuant to Rule 60(c), the

asserted newly discovered evidence could have been dis-

covered by due diligence in time to move for a new trial

under Rule 59(d), 16 A.R.S., as the first question. The ques-

tion of whether or not the asserted newly discovered evi-

dence is of such a character as to give reasonable assur-

ance that it will work a different result upon retrial will

be designated as the second question.

In considering the first question, it is clear that the rail-

road company had numerous special agents, police officers,

and a large legal staff in its employ for the purpose of in-

vestigating the facts of all cases, and had unusual facilities

for discovering the truth and the real facts and for pre-

65a

paring cases for trial. This is amply demonstrated by the

results of the efforts of such employees after they began

their investigation into the question of the asserted per-

jury. It is felt that very simple inquiries, in the early

stages, directed to one or more of the numerous references

set forth by Dickinson in his very detailed ‘‘resume’’ of his

educational background and experience, would have raised

enough question that a more complete investigation might

have been advisable, with possibly the same findings as

revealed by Southern Pacific in this case and by the De-

fendants in the proceedings in chambers in the case before

the Superior Court of San Joaquin County, California, on

June 12, 1974. (Torres vs. National Abrasive Company,

No. 103899, Dept. 7, San Joaquin County, California, in

which the same witness was alleged to have given perjured

statements regarding his qualifications.)

The Appellant was advised by the Plaintiff about six

weeks before trial that Dickinson would testify as an ex-

pert in the trial, and his deposition was taken on July 19,

1973, at which time the expert’s resume on his educational

background, training and experience was furnished Appel-

lant. In the resume, the expert listed, among others, ten

other cases in which he had been consulted or testified dur-

ing the year prior to the resume, cases involving crossing

accidents in which the Southern Pacific Company was a

Defendant. It is apparent tuat Mr. Dickinson was not a

total stranger to the legal staff of Southern Pacific Com-

pany prior to, during and subsequent to the instant trial.

There is no showing of what diligence, if any, was used

by Appellant to discover the omitted evidence until a short

time before the filing of its Motion for New Trial in the

Supreme Court on February 18, 1975, or until the expert

was unmasked in the San Joaquin County case. No dili-

gence whatsoever seems to have been exercised by the Ap-

pellant in inquiring into the qualifications of Dickinson,

although it has had, and did have in this case, ample oppor-

tunity to do so.

66a

Considering the second question, this Court cannot give

reasonable assurance that the asserted newly discovered

evidence is of such a character that it will, or would, work

a different result upon a retrial.

Casting aside the witness’ testimony concerning his edu-

cational background and experience, his testimony was

merely that of a typical aecident reconstruction expert.

As a matter of fact, counsel for the Appellant have never

questioned the truth of Mr. Dickinson’s material testi-

mony concerning the speed of the train, speed-distance-

time calculations, stopping distances, ete. The witness’

opinions and conclusions concerning the pertinent portion

of his testimony were verified for local trial counsel by

the railroad company’s representatives in their San Fran-

cisco offices. All concerned were satisfied with the conclu-

sions, procedures, formulas used, ete., to the extent that

no expert testimony was offered at the trial to contradict

his accident reconstruction testimony. There has never been

a contention on the part of the railroad that the technical

testimony was false or inaccurate, despite the fact that his

testimony concerning his credentials may have been false.

The only possible use for the asserted newly discovered

evidence would be for the purpose of impeachment. It is

indicated that Dickinson’s testimony based upon the for-

mulas used, mathematical computations, data used, ete.

were in accurdance with commonly accepted standards, and

would not be expected to be different on a new trial. At

least, Appellant has not argued this, and we must therefore

assume that it is true.

There would appear to be sufficient evidence in the record

as to speed, etc. to justify the verdict even without the

testimony of Dickinson.

The Court having heard the argument of the attorneys

applicable to the questions submitted to this Court by the

Supreme Court for determination ander its Mandate, hav-

67a

ing considered the voluminous record, pleadings, memo-

randa submitted by the parties, and evidence submitted,

the Finding, Judgment and Determination of the Court is

as follows:

1. Pursuant to Rule 60(c), the asserted newly discov-

ered evidence could have been discovered by due diligence

in time to move for a new trial under Rule 59(d), 16 A.R.S.

2. The asserted newly discovered evidence is not of

such a character as to give reasonable assurance that it

would work a different result upon a retrial.

Done IN open court this 8th day of August, 1975.

/s/ Luoyp C. Het,

Judge

TO: Bilby, Thompson, Shoenhair & Warnock, 2 E. Con-

gress, 9th Floor, Tucson, Arizona 85701

D. Dale Haralson, Esq., 32 North Stone, Suite 703,

Tucson, Arizona 85701

Robert G. Begam, Esq. The Association of Trial Law-

yers of America, 1400 Arizona Title Building, Phoe-

nix, Arizona 85003

Supreme Court, State of Arizona, Capital Building,

Phoenix, Arizona 85007

Hon. Ben C. Birdsall, Presiding Judge Pima County

Courthouse, Tucson, Arizona 85701

Mrs. Elizabeth Urwin Fritz, Clerk of Court of Ap-

peals, Division Two, 415 West Congress, Tucson,

Arizona 85701

West Pub’ishing Companny, 50 West Kellogg Boule-

vard, St. Paul, Minnesota 55102

68a

IN THE SUPREME COURT OF THE STATE OF ARIZONA

Supreme Court No. 11768-PR

No. 2 CA-CIV-1578

Pima County Superior Court No. 143887

Soutuern Pactric Transportation Company,

a corporation, Appellant,

vs.

Me ante Lveck, in her individual capacity and as surviving

widow of William T. Lueck, Appellee.

Objection to Finding, Judgment and Determination of Trial Court

INTRODUCTION

This Objection is made pursuant to the Opinion of the

Supreme Court in this case delineating the procedure to

be followed after the hearing on the remand by the Su-

preme Court to the Trial Court.

STATEMENT OF THE CASE

The Supreme Court on the 25th day of April, 1975, is-

sued its Opinion in this matter, vacating the Appellate

Court Decision; subsequently, a Motion for Rehearing was

denied on the 3rd day of June, 1975, without oral argument

and the pleadings in support thereof were struck as being

**disrespectful and abusive.’’

The matter was then set for hearing by the Trial Court

on the 26th day of June, 1975. Prior to the hearing the

following pleadings were filed:

|. Notice of Deposition for Carl Waag (June 6, 1975) ;

2. Notice of Deposition for Allen William Dickinson

(June 12, 1975);

69a

3. Motion for Protective Order filed by appellee on

June 13, 1975;

4. Motion to Take Depositions filed by appellant on

June 17, 1975;

5. Motion for Continuance filed by appellant on June

24, 1975.

At the time of the hearing, the Court took under advise-

ment all of the Motions, specifically stating:

‘‘Well, let’s just put it this way. As far as that depo-

sition is concerned, that will not be had until further

order of the court. If the court determines that depo-

sitions can be had, it can be set at a different or later

time. .. . Insofar as the taking of any depositions, un-

til such time as there is a ruling by the court, the

depositions will not be taken.’’

By separate Order, the Court held on August 8, 1975,

that since the perjury was undisputed the Motions would

all be denied.

STATEMENT oF Facts

The case was remanded to the Trial Court for a deter-

mination :

‘‘The Superior Court shall determine, pursuant to

Rule 60(c), whether the asserted newly discovered

evidence could not have been discovered by due dili-

gence in time to move for a new trial under Rule 59(d),

16 A.R.S., and whether it is of such a character as to

give reasonable assurance that it will work a different

result upon retrial.’’

Evidence on Perjury by Plairtiff’s Reconstruction Expert

Pursuant to Rule 42(c)(d) Arizona Rules of Procedure,

appellant moved for a continuance in this matter so as to

70a

have a reasonable opportunity to produce its witnesses

from England and various distant parts of the United

States to prove the perjury of the plaintiff-appellee’s re-

construction expert (copies of the Motion and Affidavit

are attached hereto as Exhibit 1). This Affidavit which was

not contested conclusively establishes that the plaintiff’s

perjurer assumed the identity of Allen William Dickinson,

a graduate of Cambridge University, Englaud, who held

two degrees, and upon assuming that identification man-

aged to commit wholesale perjury throughout the Western

United States against the Southern Pacific and other rail-

roads as well as other parties in litigation. (Exhibit 1) The

Trial Judge admitted as much in his order dated August

8, 1975. (Exhibit 2 attached hereto)

Appellant also sought to take the deposition of the

plaintiff’s perjurer (Mr. Dickinson) and one Carl Waag,

a member of the Arizona Bar, and the person allegedly re-

sponsible for procuring the perjurer’s participation in this

ease. The purpose of these depositions being to show the

cleverness of the perjurer’s scheme, which would have been

most relevant to the issue of due diligence in discovering

the existence of perjury in this case.

The extent of the perjury is uncontested and the evi-

dence, on the question of due diligence, demonstrated the

following :

1. The plaintiff’s perjurer’s deposition was taken on

July 19, 1973, approximately two weeks prior to the

trial of this case; (approximately six (6) years

after the case was filed)

Three (3) days after the deposition, additional in-

formation was furnished to the appellant’s counsel

by appellee’s counsel;

3. The trial commenced on the 31st day of July, 1973,

and concluded on the 17th day of August, 1973;

Tla

4. A timely Motion for New Trial was filed with the

court on the 27th day of August, 1973;

5. Thirty-eight (38) days elapsed between the taking

of the plaintiff’s perjurer’s deposition and the date

the Motion for New Trial was filed.

Three witnesses testified at the hearing: Mr. Gino Ma-

nicci, an Assistant District Claims Agent for the Southern

Pacific; Mr. D. B. Udall, a practicing attorney in Tucson,

Arizona; and Mr. T. Scott Higgins, an attorney practic-

ing in Tucson, Arizona, formerly with the firm represent-

ing the appellant and the lawyer who tried the case in

question.

Mr. Manicci was the first person able to prove that

plaintiff’s perjurer, Mr. Dickinson, was in fact a fraud.

This was accomplished after an attorney taking Dickin-

son’s deposition in a case in California discovered a fac-

tual discrepancy about his war service. [TR-43]* When

Mr. Manicci first called Cambridge University in England,

they verified that Allen William Dickinson had graduated

from St. John’s College, Cambridge University with BA

and MA degrees in engineering. [TR-34] *

Mr. Manicci subsequently checked with the Immigration

Service and approximately three to four weeks later was

shown a file by the United States Immigration Service

which included a picture of the plaintiff’s perjurer. It was

then and only then that Mr. Manicci was able to confirm

that plaintiff’s perjurer was in fact a fraud. [TR-36]

After approximately three to four months of further

intensive investigation, it became possible to prove that

1 All references to TR are to the Transcript of testimony taken

at the June 26, 1975 hearing.

2 This coincided with the information that Mr. Dickinson had

testified about with the exception that it did not include the fact

that he claimed to have a Fellowship and/or Ph.D.

72a

plaintiff’s witness was, in fact, a fraud and a perjurer.

| TR-36-38 ]

Mr. Udall, an attorney with 21 years of practice in Pima

County, representing insurance firms in defense work,

stated that in all his experience, he had never written or

called an educational institution to see if a particular wit-

ness had a degree or degrees as claimed. [TR-51]

He further stated in response to a hypothetical question

that under the facts of this case it was his opinion:

‘*... a lawyer using due diligence in this community

would not have checked with his, whatever he said he

graduated from or wherever he claims he had worked

GBs cee™

In answer to a question by plaintiff’s counsel as to

whether or not, assuming he had Claims Agents available

to him and there was a new expert in town, he would have

checked on his background, he stated;

‘*T think I am saying that, Dale, I don’t know as I

have ever gone to ask my client, an insurance com-

pany, to check with Stanford or Yale or Harvard or

wherever the man told me he graduated from. I also

work under the assumption that they are telling the

truth unless I have some reason to the contrary.”’

Nature of the Perjury

The perjured testimony went to the perjurer’s qualifica-

tions to testify as an expert. (Exhibit 1) The appellant

established through the Engineer and the Fireman that

the speed of the train was within the City’s speed limits

of 60 mils per hour. Without the testimony of the plain-

tiff’s perjurer, there was no testimony in the record to

support a speed of the train in violation of the City Ordi-

nance,

73a

The Supreme Court’s reliance upon the plaintiff’s per-

jurer’s testimony was set forth on pages 8 and 9 of its

Opinion. On page 8 it stated:

“The plaintiff’s reconstruction expert testified that

in his opinion, because of the distance required to

bring the work train to a stop and other factors, it was

traveling at a speed of up to 70 miles per hour. If the

work train had been traveling 40 miles per hour, ac-

cording to the same expert, there would have been no

collision.’’

Then, again on page 9, it showed its further reliance

upon this perjury by holding:

‘Since the speed limit for trains was fixed at 60 miles

per hour through the City of Willeox and since the

work train was running at the estimated speed of as

high as 70 miles per hour, it could have concluded that

the work train was being operated in violation of the

speed law and that such constituted negligence per

se.’’

ARGUMENT

Due Diligence

The Trial Court was required by the Mandate of the

Supreme Court to make a two-fold finding. The first de-

termination was whether or not, pursuant to Rule 60(c),

the newly discovered evidence cou!] have been discovered

by due diligence in time to move for a new trial under Rule

59(b).

The Trial Court in holding that the defendant did not

exercise due diligence in discovering the perjured qualifi-

cations of the witness, stated:

‘‘the railroad had numerous special agents, police

officers and a large legal staff in its employ for the

74a

purpose of investigating the facts of all cases, and

had unusual facilities for discovering the truth and

the real facts and for preparing cases for trial.’’

The Court goes on to say that if simple inquiries had

been made in the early stages, enough suspicion would have

been aroused to warrant further investigation. The Court

goes on to conclude that the defendant’s failure to insti-

tute an investigation concerning the qualifications of the

plaintiff’s perjurer was tantamount to a failure to exer-

cise due diligence. If the Trial Court’s analysis of those

facts necessary to satisfy due diligence are accepted, a

new obligation of counsel will have been conceived. Re-

sponsibility for assuring that witnesses are legitimate

will now rest with the adverse party rather than the party

presenting them. Moreover, the custom and practice of the

practicing bar does not place the responsibility of discov-

ering dishonest witnesses upon an adverse party. [TR-51]

The Trial Court indicates that the size of a party and

the investigatory staff available to that party have some

effect in determining whether due diligence has been exer-

cised, The defendant is unable to discover any authority

for such a proposition. The defendant concedes that the

determination of whether or not due diligence has been ex-

ercised is usually a factual determination within the dis-

cretion of the court. However, the defendant has discov-

ered no case, in either Arizona or in any jurisdiction of the

United States, which has extended the responsibilities of

due diligence to such lengths.

Arizona cases regarding due diligence are readily dis-

tinguishable from the case at bar. Sabin v. Rauch, 75 Ariz.

275, 255 P.2d 206 (1953) is often cited for its statements

regarding due diligence. A motion for new trial was pre-

sented by the defendant when certain liens upon the land

were discovered by the defendant. The trial court denied

the motion and held that due diligence was not exercised.

Tha

The newly discovered evidence in that case pertained to

liens upon land which was occupied by the defendant. It

was noted that eight months transpired from the time

defendant took position of the land to the time the liens

became due. It was held that it was a lack of due diligence

to discover those liens in that period of time.

In Chambers v. Taber, 21 Ariz. App. 291, 518 P.2d 1008

(1974), the decedent was killed while on defendant’s land.

Defendant maintained that because of an assignment of a

leasehold interest they were not in possession of the land

at the time of plaintiff’s death. Plaintiff moved for a new

trial on the basis of a document which demonstrated that

the defendant was in fact in possession or control of the

property at the time of decedent’s death. The court denied

the motion and held that since the document was in plain-

tiff’s possession for eight months prior to trial due dili-

gence was not exercised in discovering the date of execu-

tion of the document.

In Ghyselinck v. Buchanan, 13 Ariz.App. 125, 474 F.2d

844 (1970), plaintiff subpoenaed certain documents from

defendant. The defendant informed plaintiff's attorney

that those documents were in his possession but plaintiff

failed to call for their production at trial. The plaintiff, on

the basis of this information, moved for a new trial. The

court denied the motion stating that due diligence has not

been exercised in the discovery of that evidence.

In Schneider v. City of Phoenix, 9 Ariz.App. 365, 452

P.2d 521 (1969), the plaintiff moved for a new trial based

upon a report which plaintiff classified as newly discov-

ever evidence. The court denied the motion holding that

the report could have been discovered with the exercise of

reasonable discovery procedures.

These cases are all factually distinguishable from the

case presented to this Court. Conscientious preparation or

use of discovery methods would have revealed the evidence

in each of the cited cases. This is quite different from dis-

76a

covering that an expert witness had assumed the name

and identity of another in order to falsify his qualifica-

tions at trial. For this to come to light, a complete investi-

gation would have to be executed. To impose such a duty

in each case involving expert testimony would be totally

unreasonable and unjust. Moreover, if this responsibility

is going to be imposed upon a party, it should be placed

with the party representing the witness, not the adverse

party.

The uncontested statement of facts demonstrates that

a period of only thirty-eight (38) days elapsed from the

time the plaintiff’s perjurer’s deposition was taken to the

day the Motion for New Trial was filed. [Once the defend-

ant became aware of the possibility that plaintiff’s witness

was a perjurer, it exercised all due diligence to gather in-

formation which would either support or disavow the alle-

gations. |

Approval of the Trial Court’s analysis of due diligence

of this defendant transcends the facts of this case. Plac-

ing a burden upon a party prior to trial to discover the

integrity of each witness presented by the adverse party,

perverts the adversary system. Moreover, when this bur-

den is either increased or decreased depending on the size

and investigatory staff available to a party, it is tanta-

mount to a denial of a party’s constitutional right to due

process and equal protection of law.

Defendant maintains that it exercised due diligence in

revealing the newly discovered evidence. Consequently, the

defendant muintains that it has fulfilled the first prere-

quisite to the granting of a motion for new trial.

Further evidence of the extent to which plaintiff’s per-

jurer went to hide his identity would have been produced

had appellant been allowed to take his deposition. Like-

wise, the deposition of Carl Waag would have borne ma-

terially on the issue of due diligence. It seems strange that

a court would not be vitally interested in discovering what

77a

involvement a member of the State Bar had in producing

plaintiff’s perjurer at the last moment before trial.

This rush to judgment cannot help but raise further

doubts as to the validity of the Trial Court’s finding that

the defendant was guilty of lack of due diligence in not

unmasking the plaintiff’s perjurer during the thirty-eight

day period from deposition to the filing of a Motion for

New Trial.

Different Result Upon Retrial

The Trial Court has determined that the newly discov-

ered evidence would not effect a different result upon re-

trial. The Trial Court prefaces his explanation by stating:

‘*(ejasting aside the witness’ testimony concerning

his educational background and experience, his testi-

mony was merely that of a typical accident reconstrue-

tion expert.’’

Defendant maintains that this deficiency of the expert

cannot merely be case aside. Indeed, the educational back-

ground and experience of this expert are the crux of the

question presented to the Court. If the Trial Court is per-

mitted to gloss over the pivotal question of this appeal,

then certainly the basis of the decision becomes suspect.

In the first instance, it is the Trial Court’s obligation to

determine whether a witness possesses those qualifications

necessary to qualify as an expert. Carrel v. Lux, 101 Ariz.

403, 420 P.2d 564 (1966); Lowery v. Turner, 19 Ariz.App.

299, 506 P.2d 1084 (1973). Had the Trial Court been aware

that the alleged expert in this case did not possess the

educational or experiential background that he claimed,

there is no question but that a different result would have

occurred. If the witness was unable to establish the fact

that he was in fact an expert, his testimony and opinions

would have been rejected by the Court. Without the testi-

mony of the plaintiff’s perjurer, there was no evidence to

78a

support the Instruction given or the statement in this

Court’s Opinion as to speed. Without such evidence it can

hardly be denied that the jury would have reached a dif-

ferent result. Moreover, the Trial Court must have con-

sidered it appropriate that expert testimony be given, for

if the evidence was of such a nature that jurors could have

formed reasonable opinions for themselves, then expert

witness testimony would have been rejected. Hinson vy.

Phoenix Pie Co., 3 AriztApp. 523, 416 P.2d 202 (1966).

Based upon this perjurer’s testimony the Court in-

structed the jury as follows:

‘«. . . Three, an ordinance of the City of Willcox

limited the speed of trains to sixty miles per hour

within the city limits. Should you find that any party

to this suit violated any of the above laws then that

party would be guilty of negligence as a matter of

law and you should not debate the issue further, but

should then consider whether that negligence is the

proximate cause of the injury or death.’’ [12-TR, 113]

Without the perjured foundation the plaintiff’s ‘‘ex-

pert’’ could not establish himself as an expert. One cannot

construct a bu ding, much less a skyscraper, upon suth

quicksand. Without plaintiff’s perjurer’s testimony, the

plaintiff's case failed to include competent evidence of the

speed of the train in excess of the speed limit. As indicated

by the Jury Instruction, the speed of the train was an es-

sential element in this case, and the lack of testimony

regarding the speed of the train would certainly have af-

fected the outcome of the verdict.

The Trial Court in its determination that the newly

discovered evidence would not work a different result upon

retrial asserts that the substantive testimony given by the

perjured witness was technically correct. The clear impli-

cation of this statement is that upon retrial another expert

would give the same testimony and therefore a different

79a

result would not be probable.’ This logic is specious; ad-

harence to it completely ignores the role of the jury in

in a trial.

It is well settled that jurors are the sole judges of the

credibility of witnesses. Batt v. State, 28 Utah 2d 417, 503

P.2d 855 (1972). They were so instructed in this case:

‘*You as jurors are the sole judges of the credibility

of the witnesses, who is telling the truth, who is mis-

taken, whose testimony is accurate. Questions of this

nature are for you alone to determine uninfluenced by

the Court in any way. The Court does, however, give

you this cautionary instruction: In determining the

weight to be given to the testimony of any witness you

should take into account his demeanor on the stand,

his manner of testifying, whether he was frank and

and open, whether he might have any interest in the

outcome of the case and whether he is in any way

biased or prejudiced.’’ [12-TR, 106]

This Instruction makes it quite clear that more than

the substance of the testimony of a witness is to be con-

sidered by a jury. To allow the Trial Court, at this point,

to state that since the substance of the opinion testimony

may have been fairly accurate, the jury would not arrive

at a different result, if a different expert were testifying,

is patently erroneous. This witness attributed to himself

not merely adequate credentials but qualifications of the

highest level. His self-acclaimed accomplishments had to

have been considered by the jury in assessing his credi-

bility. Indeed, it was the jury’s obligation to consider those

qualifications as the Court instructed them:

* This, of course, presumes three things:

a) That the new witness wil! not be another perjurer;

b) That he or she would testify the same way ; and

ce) That the new witness would be as effective an advocate as

was the plaintiff’s perjurer.

80a

‘‘The rules of evidence ordinarily do not permit the

opinion of witnesses to be received as evidence. An

exception to this rule exists in the case of expert wit-

nesses. A person who by education, study and expe-

rience has become an expert in any science or profes-

sion may give his opinion as to any such matter. You

should consider such expert opinion and should weigh

the reasons, if any, given for them; however, you are

not bound by such opinion ... .’’ [7-TR, 120] (em-

phasis added)

Acceptance of the Trial Court’s reasoning is to assume

the jury totally disregarded these Instructions and paid no

attention to plaintiff’s perjurer. This Court is aware that

the jury was obligated to consider the demeanor, manner

of testifying and frankness of a witness in determining the

credibility to be attributed to him. Moreover, the qualifi-

eations ot a witness should be considered by the jury in

their determination of the degree of weight to attribute to

the witness’ testimony. Webb v. Mathieson Chemical Corp.,

342 P.2d 1094 (1965).

The Trial Court, however, under the auspices of a Mo-

tion for New Trial, apparently has determined that the

jury’s assessment of credibility of a witness has no effect

on the final verdict which it renders. Indeed, the Trial

Court's opinion completely ignores the fact that the cre-

dentials espoused by the alleged expert were worthy of

the utmost respect and given such by plaintiff’s counsel in

his final argument to the jury when he stated:

‘‘Speed in excess of ordinance: Now the City ordi-

nance that was established was 60 miles per hour

through there.

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