# Petition — Southern Pacific Transportation Co. v. Lueck > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1731%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 913 ## Text 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, v. 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, v. 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] 2 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 3 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 4 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. — 5 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 6 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 7 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.’’ 8 ‘“‘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 9 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- 10 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 11 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. 12 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 13 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. 14 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 15 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 16 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 ee 17 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- 18 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 & 19 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 la 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) 2a 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 3a 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 4a 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). 5a 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. } "JSOM ‘ouT] UleU Jo doUBAvOTO ‘UIVI} YOM PUB WY_ JO [eavsy Jo uotoog g SUTPIVME UIVI} FYSIOIZ JO JOAVA, JO uoToIIG O ‘Y}NOS { pasvddep Jo [oOAvI} JO UOTPOIIGT VW i a 3 s = H e . Aw 4 c = Ss iti owe — fam { ww eee 6a Depot , i. 6 City Pork & Fal 7 Lawl J dats y L ‘ 4-200 Ft. ob» < 7a 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 8a 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 9a 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. I. 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? bo 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. IV 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. IV 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 o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1731%3A1. Public record. Not legal advice.