text:
    Paulina PEREZ et al., Plaintiffs-Appellants, v. Jule M. SUGARMAN et al., Defendants, and New York Foundling Hospital and St. Joseph’s Home of Peekskill, Defendants-Appellees.
    No. 202, Docket 73-1790.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 3, 1974.
    Decided June 7, 1974.

      Lisa H. Blitman, George C. Stewart, Napoleon B. Williams, New York City, for plaintiffs-appellants.
    Frederick J. Magovern, Bodell, Gross & Magovern,' New York City, for defendants-appellees.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the Southern District of New York, sitting by designation.

   WATERMAN, Circuit Judge:

This is a civil rights suit brought under 42 U.S.C. § 1983 against four individual defendants, all of whom are employed by the municipality of New York City, and two private child-caring institutions, New York Foundling Hospital and St. Joseph’s Home for Children. The complaint alleges deprivations of the constitutional rights to due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. In the district court below the two institutional defendants moved to dismiss the complaint as against them on the grounds, inter alia, that the court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. The district court, Metzner, Japparently assuming arguendo that subject matter jurisdiction existed, first dismissed the complaint, but only to the extent that it was based on alleged denials of equal protection, against the institutional defendants upon the ground that it failed to state a claim upon which relief could be granted. Judge Metzner then dismissed the entire complaint against the private institutions for lack of subject matter jurisdiction. We do not disturb the district court’s dismissal of the complaint insofar as the complaint alleges equal protection violations. We hold, however, that the lower court had subject matter jurisdiction and, accordingly, we reverse the district court’s dismissal for lack of subject matter jurisdiction and order the complaint reinstated against the defendants-appellees herein except to the extent that it rests on alleged denials of equal protection.

The gravamen of the complaint is an alleged unlawful and unconstitutional detention of appellant Perez’s children. Although the allegations are unclear at some points in describing what specific acts were performed by which particular defendants, the complaint does disclose the general sequence of events concerning which the plaintiff complains. In late December 1969, plaintiff-appellant suddenly became ill and was transported to a hospital by ambulance. During the period of her hospitalization appellant’s children came into the custody of New York City child welfare officials. The children were subsequently placed by the city with the two private institutional defendants herein. Following her release from the hospital appellant began to request the return of her children, but the defendants refused to surrender custody.

The complaint states that it was not until March of 1972 that the defendant city officials made any attempt to obtain a court order to attest to the validity of their detention of appellant’s children. Even then, the neglect proceeding filed by the city in the Family Court was apparently instituted only in response to a petition filed by appellant in New York Supreme Court for a writ of habeas corpus, in which she sought return of her children. In short, appellant’s complaint alleges that these children were removed by the city and then detained by the defendant institutions for well over two years without the parent’s consent or without benefit of either a court order protecting the detention or benefit of a hearing of any kind whatsoever. The complaint also alleges that the institutional defendants were cognizant of the fact that there had been no hearing and that there had been neither a court order authorizing institutional custody nor consent of the parent agreeing to it.

42 U.S.C. § 1983, the provision of law upon which this lawsuit is predicated, is apposite only when the person against whom the provision is invoked has acted “under color of” law. It is well-established that this jurisdictional prerequisite is congruent to the “state action” concept. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); United States v. Wiseman, 445 F.2d 792, 794 (2 Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1971) In this case the appellee institutions, concededly private in nature, contend that their actions in detaining the appellant’s children do not constitute “state action” but rather the action of private parties wholly without the purview of Section 1983. For the reasons developed below, we disagree, and we conclude that under the circumstances here the actions of the institutional defendants did constitute “state action” and therefore the district court had subject matter jurisdiction.

As a general rule, the proscriptions of the Fourteenth Amendment do not extend to private conduct. But “[c]onduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.” Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). While the numerous cases which have grappled with the concept of “state action” have reached widely disparate results, this apparent disarray is to be expected since “[o]nly by sifting facts and weighing circumstances [of each case] can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961); accord, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Evans v. Newton, 382 U.S. 296, 299-300, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Male v. Crossroads Associates, 469 F.2d 616, 620 (2 Cir. 1972). When we “sift the facts” and “weigh the circumstances” before us here, we conclude that the acts of the private institutions of which appellant complains were “under color of” state law.

In certain instances the actions of private entities may be considered to be infused with “state action” if those private parties are performing a function public or governmental in nature and which would have to be performed by the Government but for the activities of the private parties. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); United States v. Wiseman, supra. For example, in United States v. Wiseman, supra, we held that the acts of private process servers there constituted “state action” despite the fact that the servers were not technically state employees. The rationale of that decision was that the function which these people performed was one “essentially and traditionally” public. Similarly, in Evans v. Newton, supra, the operation of a municipal park was considered essentially public in nature, irrespective of whether the parties supervising the operations of the park were private persons or public officials. In accepting and retaining custody of children alleged to have been “neglected” or “abandoned,” child-caring institutions of the type we have in this case perform a “public function.” Any doubt that this function is a public one is dispelled by even a cursory reading of Section 395 of the" New York Social Services Law (McKinney Supp.1972) (NYSSL), which declares that government officials “shall be responsible for the welfare of children who are in need of public assistance and care, support and protection . . . . ” In fulfilling this responsibility, however, the State may provide direct assistance or, should it so choose, the State may act “through an authorized agency.” Id. Both institutional defendants herein lie within the statutory definition of “authorized agency.” See NYSSL § 371(10). Thus, the statutory scheme expressly contemplates that in performing this public function of caring for children the State may utilize private entities of the sort we have here. This is precisely what the city welfare officials did when they transferred appellant’s children to the care of the institutional defendants. But, as the statute makes ineontrovertibly clear, it is the State which in effect is providing the care through the private institutions. This exercise of the administrative placing prerogative does not affect in any way the State’s ultimate responsibility for the well-being of the children, and, consequently, the public nature of the function being performed.

We need not rely solely on the “public function” theory, however, to support our conclusion that “state action” exists. The comprehensive statutory regulatory scheme of the New York Social Services Law is persuasive, perhaps compelling, evidence of the degree to which the State has insinuated itself into the actions of the private defendants here. As we have already indicated, the statute makes the State bear responsibility for the care of all children in need of assistance. NYSSL § 395. The pervasiveness of the state control over cooperating private institutions is disclosed by further inquiry. Section 371(10) requires that any child-caring institution desiring to qualify as an “authorized agency” must be incorporated in New York and must consent to be approved, visited, inspected, and supervised by the State “as to any and all acts in relation to the welfare of [the] children” it receives from the State. Public Welfare officials have the power to place children only in those institutions which are “visited, inspected and supervised by the board and conducted in conformity with the rules of such board.” Id. § 398, subd. 6(g). The State may visit any such institution, id. § 386, and the law recommends that this be done at least four times a year. Such institutions must keep detailed records which can be inspected by the State and must make reports to the State on special forms supplied by the State. Id. § 372. Additionally, the State must supervise children of whom it has taken custody until they reach the age of twenty-one. Id. § 398, subd. 6(h). Most importantly, the absolute dominion of the State over the private institutions is illustrated by the State’s ability to remove the children from the institution at any time. Id. § 400. This comprehensive statute thus establishes that while the State may have yielded physical possession of the children, at no time did it, or indeed could it, relinquish effective legal control over them. This retention of control does not, however, undercut the importance of the institutions in the overall scheme to care for needy children. As noted, the New York Social Services Law expressly contemplates the use of private facilities to accomplish the public purpose here. Indeed, these private entities are an integral part of the public operation of providing assistance. And, as the Supreme Court has pointed out in Burton v. Wilmington Parking Authority, supra, the dependence of the State on private parties is a - factor which tends to establish the intimacy requisite to a finding of “state action.”

We point out that appellant does not claim that "the regulatory system to which these private institutions are subjected when they accept children from the State compels a holding that every action in which such an institution engages is “state action.” Rather, appellant argues only that the particular custodial power exercised here in detaining appellant’s children constitutes “state action” because there is a nexus between the public function being performed and the specific acts which are alleged to be objectionable. Just as in United States v. Wiseman, supra, 445 F.2d at 796, “this case directly involves defendants’ mode of conducting the public function and does not involve a collateral aspect of” the business of operating an institution which cares for children. The existence of this nexus has made the courts more receptive to a finding of “state action.” See, e. g„ id. at 796.

Appellant maintains that the district court prejudicially erred in failing to grant her request that the defendant institutions be directed to answer interrogatories which sought to obtain information about any public funding the institutions receive. Appellant desired this information for the purpose of proving her allegations of “state action,” and, in view of the holding we reach here, it is obviously no longer necessary for us to consider this issue.

Reversed and remanded.

      . On this point, we adopt the reasoning of the court below.

      . Technically, appellant Perez’s infant children are also parties to this action. For the sake of simplicity, we shall dispense with referring to the children as “appellants.”

      . Assuming the court to have subject-matter jurisdiction over the claims alleged against the institutions appellant and appellees have devoted some attention to the question of whether the complaint states a cause of action upon which relief can be granted to appellant. As we have indicated, a motion under Rule 12(b) (6) of the Federal Rules of Civil Procedure, in addition to the motion under Rule 12(b)(1), was before Judge Metzner. Except to the extent of dismissing the equal protection portion of the claim, however, the district court did not decide the 12(b)(6) motion. We therefore are not required in advance of a ruling below to determine whether the due process portions of the complaint state a cause of action upon which relief can be granted. However, we observe in this connection that the allegations of the complaint are far from frivolous.
      These children were placed in defendant institutions in December of 1969. At that time § 398, subd. 2(b) of the New York Social Services Law, McKinney’s Consol.Laws, c. 55 declared that the power and the duty of a social welfare officer was to “[r]eeeive and care for any child alleged to be neglected or abandoned who is temporarily placed in his care by the family court pending adjudication by such court of the alleged neglect or abandonment. . ...” This provision seems to imply that there was no authority at that time to receive and care for appellant’s children without an order, or at least a pending proceeding to obtain an order, of the family court.
      On June 1, 1970, when the appellant’s children were still in the custody of the institutions, amendments to § 398 became effective. The law then read and now provides that “[a] social services official shall have the same authority as a peace officer to remove a child from his home without an order of the family court and without the consent of the parent . . . if . . . continuing in the home presents an imminent danger to the child’s life or health. When a child is removed from his home pursuant to the provisions of this subdivision, the social services official shall promptly inform the parent . . . and the family court of his action.” (Emphasis supplied). NYSSL § 398, subd. 9. Although this amended section might authorize removal from the home without a court order, it would not seem to justify a detention in excess of two years without a court order or a hearing. Moreover, as we have stated, the initial removal in this case would appear to have been governed by the provisions of § 398 existing on the date of that removal. Thus, it is possible that both the initial removal and the subsequent detention involve violations of law.

      . “ ‘Under color’ of law means the same thing in [18 U.S.C.] § 242 that it does in the civil counterpart of § 242, 42 U.S.C. § 1983.” United States v. Price, supra, 383 U.S. at 794 n. 7, 86 S.Ct. at 1157.

      . In a footnote in their brief in this court, appellees direct our attention to the point in appellant’s complaint where the appellees are described as “agents” of New York City. From this characterization appellees reach the novel conclusion that they must be considered as organs of a municipality. We are then referred to cases which have held municipalities immune from suit under 42 U.S. C. § 1983. We find this line of reasoning superficial. Acceptance of such reasoning would foreclose suit against any party who could be regarded as an agent of a municipality. Yet, § 1983 cases invariably concern individuals or institutions who are alleged to have acted in just such an agency capacity for the State. Appellees next suggest that the appellee institutions may not be “persons” within the § 1983 definition of that term. But this contention must also be rejected, for § 1983 has served as a vehicle for bringing suit against corporate entities. See, e. g., Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 152 (6 Cir. 1973) ; Bronson v. Consolidated Edison Co., 350 F.Supp. 443 (SDNY 1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972).

      . In situations where this connection was absent, however, a much more substantial showing of state implication into the private action has been required. See, e. g., Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2 Cir. 1971).
      Appellees place particular emphasis on this case. As mentioned, the lack of a nexus is significant, and therefore the holding in Lefcourt is inapplicable to the case before us. Furthermore, Lefcourt is distinguishable because it involved a function which “far from being the function of an agency which ‘traditionally serves the community’ is normally performed for and by private persons.” Id. at 1156. Also, the city there retained “few controls” over the private party alleged to have engaged in “state action.”


source: Caselaw Access Project

author: HILL, Circuit Judge.

license: Public Domain

text:
    Jose LOPEZ and First National Bank in Albuquerque, Co-Administrators and Personal Representatives of the Estates of Cecilia Cardiel de Lopez, et al., Plaintiffs-Appellees, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant-Appellant, Third Party Plaintiff, v. The CITY OF ALAMOGORDO, NEW MEXICO, Third Party Defendant-Appellee.
    No. 73-1675.
    United States Court of Appeals, Tenth Circuit.
    Argued March 21, 1974.
    Decided July 1, 1974.
    Rehearing Denied July 25, 1974.

      W. B. Kelly, Santa Fe, N. M., for defendant-appellant, third party plaintiff.
    Richard E. Ransom, Albuquerque, N. M., for plaintiffs-appellees.
    Edward E. Triviz, Las Cruces, N. M., for third party defendant-appellee.
    Before HILL and DOYLE, Circuit Judges, and DURFEE, Judge.

       Honorable James R. Durfee, United States Court of Claims, sitting by designation.

   HILL, Circuit Judge.

In this diversity action Southern Pacific Transportation Company appeals a $150,000 jury verdict awarded appellees for the wrongful deaths of three members of the Domingo Lopez family. Appellant also challenges the trial court’s dismissal of the City of Alamogordo, New Mexico, as a third party defendant.

Pertinent facts leading up to this appeal include the following. The Domingo Lopez family lived in a residential area outside the city limits of Alamogordo, New Mexico. Their main access to the City was Canal Street crossing, a railroad crossing using standard city stop signs and standard railroad cross-bucks to warn motorists of approaching trains. On the evening of May 3, 1972, Domingo, his wife Cecilia, and two of their ten minor children were on their way to Alamogordo when their pickup truck collided with a Southern Pacific freight train at the Canal Street crossing. All four members were killed instantly.

Appellees, as personal representatives for the benefit of 'the eight surviving Lopez children, brought this action in the United States District Court for New Mexico to recover for alleged acts or omissions of negligence on the part of appellant. Their complaint in essence stated that appellant failed to adequately warn motorists of approaching trains. Specifically, appellant failed to construct and maintain a reasonably safe crossing; failed to exercise reasonable care in the operation of its equipment; failed to install and maintain adequate warning signs or signals; and failed to maintain proper control of its train. Appellant denied any negligence and filed a third-party complaint against the City of Alamogordo, alleging that the injuries were proximately caused by the willful negligence of third-party defendant, including failure to construct and maintain a reasonably safe crossing and approach; failure to install and maintain adequate warning signs and signals; and knowingly maintaining extra hazardous conditions at an unusually dangerous crossing. Appellant also alleged the City of Alamogordo should provide one-half contribution for any verdict rendered against the railroad.

At trial appellees’ evidence included the following. Mrs. Greenwood, the only eyewitness to the accident, testified that she was driving along Canal Street shortly after 8:00 o’clock in the evening of May 3, 1972; it was then dusk but not dark. Upon approaching the Canal Street crossing she pulled up to the crossing and stopped with the front end of her car a little past the stop sign. She then started to go on but saw the train approaching and .^stopped again. She testified that she first saw the train when the front end of the engine was less than 100 yards from the crossing. Mrs. Greenwood did not hear any whistle until about the time she saw the train ánd even then the whistle was only a short blast. The front windows on the driver’s side and the passenger’s side of her station wagon were open. She did not have a radio in her car which might have obstructed her hearing. Mrs. Greenwood further testified the Lopez truck, which was approaching the crossing from the opposite direction, was near the railroad tracks by the time the train whistle was blown.

Policeman Jerry Lilley, a patrolman for the Department of Public Safety, City of Alamogordo, investigated the accident and found that Domingo’s truck had left 24 feet 9 inches of tire marks to a point six inches over the west rail. Although it cannot be determined from the skid marks how fast Domingo was going, other testimony indicated he was approaching the tracks within the speed limit of 25 miles per hour. Domingo did, however, drive right onto the railroad tracks.

The train brakeman, Morris Crump, stated that he first saw the pickup when it was over a block from the crossing. Crump does not remember taking his eyes off the pickup after he first saw it, and admits that he was concerned about the approaching truck’s failure to stop because so many vehicles try to beat a train through crossings. Nevertheless, Crump did not make any statement to the engineer about the approaching pickup truck. He further testified that nothing the Lopez truck did or any actions of its occupants indicated they knew the train was there.

Certain facts not in dispute were presented to the jury. These include: (1) that rules and regulations of the Transportation Department of the Southern Pacific Transportation Company require a train’s whistle be sounded continuously a quarter mile from a public crossing until the train crosses» the public roadway; (2) the collision between the front end of the locomotive and the truck occurred at approximately 8:05 to 8:10 p. m., sunset having been at approximately 7:45 to 7:49 p. m.; (3) the City of Alamogordo had installed stop signs on each side of the railroad crossing on Canal Street, these stop signs were in place at the time of the accident and installed in accordance with the agreement of easement with the Southern Pacific Transportation Company.

With regard to the Canal Street crossing, the evidence indicated that in 1969 Alamogordo widenéd the grade crossing. At that time appellant inquired of the City for an approximate daily vehicular traffic count and whether automatic protection had been considered. The City replied that an eleven hour traffic count from 8:30 a. m. to 7:30 p. m. reflected 824 motor vehicles using the crossing and also stated that automatic protection was not desired. Appellant then granted the City an easement upon the condition that the City install and maintain stop signs at the crossing.

Professor Baerwald testified as an expert on traffic safety. When asked his opinion as to the reasonableness of the protection devices at the Canal Street crossing he replied that more was needed than passive devices such as stop signs and crossbucks. He pointed out these passive devices only told the motorist of the existence of the crossing and failed to tell the motorist of the proximity of any oncoming train. In arriving at this conclusion Baerwald determined that based upon the number of automobiles using the Canal Street crossing and the number of trains running across Canal Street every day the exposure factor was almost twice the value used for considering the employment of flashing lights. Baerwald also pointed out that due to sharp curves in the road and potential conflicts with vehicles entering Canal Street from side roads, a vehicle approaching the crossing is faced with intermittent interruptions along the roadway. He further stated that in fyis opinion railroad grade crossings are ineffective as a protective device. Another hazard at the Canal Street crossing, Baerwald testified, are the night lights along White Sands Boulevard, a street paralleling the tracks. It was Baerwald’s opinion that as the lights were turned on along White Sands Boulevard it became increasingly difficult for motorists to distinguish train lights from boulevard lights.

Concerning the lighting condition on the evening of May 3, several other witnesses stated that lights were on along White Sands Boulevard when the accident occurred.

Appellant’s first defense witness, Hattie Shirley, testified that she lived within several blocks of Canal Street crossing and that she heard the train whistle as it passed her home on the evening of May 3. Mrs. Shirley stated the whistle was a long, continuous blast. John Crain, Mrs. Shirley’s nephew who was visiting the Shirleys at the time of the accident, testified the train did whistle as it passed the Shirley house but the whistle was only a short blast. Carlene Moten, who also lives near Canal Street crossing, said the train blew its whistle while approaching the crossing. Ethel Adams, who was visiting Mrs. Moten, testified the train was making a continuous whistle and had its light on while nearing the crossing.

Vernon G. Donlin, retired railroad manager for the New Mexico State Highway Department, testified that in 1971 the state took a count of all railroad crossings in New Mexico. From this survey it was found that New Mexico had 772 crossings: 29 were protected by gates; 106 were protected by flashing lights or cantilever lights; 15 were protected by stop signs; 527 were protected by crossbucks; and 95 had no protection. Donlin further stated that according to his method of determining safety at railroad crossings the Canal Street crossing was adequately protected with the stop signs and crossbucks.

Jack V. Butchofsky, train engineer, testified that he was traveling about 45 miles per hour upon approaching the Canal Street crossing and was blowing the whistle continuously. He had said at the time of the accident however that he was traveling about 60 miles per hour. He stated the pickup truck was traveling slow enough that it could have stopped at any time.

After both sides rested, the City of Alamogordo’s motion for a directed verdict was granted on grounds the City did not have the same responsibility as appellant for making the crossing safe. Appellant’s motion for a directed verdict with respect to Domingo Lopez was also granted since Domingo failed to stop at the stop sign, which constituted contributory negligence as a matter of law. With respect to the three passengers in the truck, the jury was instructed that damages were permissible if the passengers were not guilty of contributory negligence and appellant’s negligence was a proximate cause of the accident. The jury returned a verdict in favor of appellees in the sum of $100,000 for the wrongful death of Cecilia Lopez and $25,000 each for the wrongful deaths of the two minor children.

Appellant’s first argument on appeal is that appellees have failed to present substantial evidence showing that negligence by Southern Pacific proximately caused the accident. Appellant strongly argues the sole proximate cause of the accident was failure of Domingo to stop at the railroad tracks. In determining this issue we will view the evidence, including all reasonable inferences, in the light most favorable to the prevailing party. Following this standard of review, we first note that Domingo was driving his truck within the speed limit of 25 miles per hour along Canal Street. The train brakeman observed the truck over a block from the crossing and although he was concerned it might not stop, he failed to notify the engineer of the potentially dangerous situation. The engineer was running the train at approximately 60 miles per hour yet he failed to blow the whistle until he was less than 100 yards from the crossing. Even then the whistle was merely a short blast, although Southern Pacific regulations require the whistle to be blown continuously once the train is within a quarter mile of a railroad crossing.

Other evidence indicated the Canal Street crossing was dangerous because there was insufficient protective devices warning motorists of approaching trains. Although stop signs and cross-bucks were placed at the crossing, these were inadequate in view of the large volume of vehicles and trains using the crossing. The evidence suggested these passive devices did not sufficiently warn motorists, who were negotiating sharp curves and looking for traffic at intersections, that a train was approaching. Further evidence indicated a potentially dangerous situation existed from the fact that White Sands Boulevard paralleled the railroad tracks; at dusk train lights easily could be confused with boulevard lights. Although appellant could have at least partially remedied this dangerous situation by installing rotating lights on its trains it had failed to do so.

From the above recital it is clear there is sufficient evidence for the jury to reasonably determine that appellant was negligent in operating its train and/or negligent in failing to provide adequate protective devices at the crossing. We cannot say as a matter of law that Domingo’s running of the stop sign was the sole proximate cause of the accident. New Mexico law states that the proximate cause of an injury “need not be the last act, or the nearest act to the injury, but may be one which actually aided in producing the injury. Proximate cause need not be the sole cause, but it must be a concurring cause.” Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563, 567 (1970). In New Mexico there can be more than one proximate cause and based upon the evidence the jury could reasonably determine that appellant’s negligence was one of the proximate causes.

The jury was instructed that if it found the passengers contributorily negligent in causing this accident the verdict must be for appellant. Contributory negligence is an affirmative defense which must be proved by the appellant. Absolutely no evidence was offered by appellant indicating that either minor child failed to exercise due care for her own safety; or failed to keep a proper lookout; or failed to stop, look and listen. With respect to Mrs. Lopez, the only evidence is that she had traveled Canal Street on numerous occasions and thus knew or should have known of the potentially dangerous crossing. Although a passenger who is aware of potential danger must take steps to avoid it, the passenger has no duty or obligation to keep a lookout on behalf of the driver and need only warn of imminent danger of which the passenger is aware and the driver unaware. See Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966). As pointed out above, there is sufficient evidence that Mrs. Lopez was not aware of the impending danger. There were intermittent interruptions along Canal Street which could have diverted her attention. The approaching darkness reduced visibility and the lights on White Sands Boulevard may have hindered her vision of the approaching train. With respect to Domingo’s running of the stop sign, there is no evidence that Mrs. Lopez should have foreseen this event. A daughter testified that Domingo always stopped at railroad crossings and looked both ways before proceeding. As Domingo approached the railroad tracks he was traveling at a speed which one witness testified was slow enough to have allowed stopping of the vehicle at any time. From the evidence the jury could reasonably infer that under the circumstances Mrs. Lopez had no reason to be aware of danger and therefore was not contributorily negligent. Even without these inferences, however, it is clear appellant failed to meet its burden of proving negligence on her part.

While appellant suggests the passengers committed contributory negligence as a matter of law there was sufficient evidence on this question to allow a jury to resolve the dispute. See DePadilla v. Atchison, T. & S. F. Ry. Co., 16 N.M. 576, 120 P. 724 (1911). The jury rejected appellant’s affirmative defense and we are bound by their decision.

The second alleged basis for reversal is the trial court’s refusal to give appellant’s requested instruction on independent intervening cause. Appellant’s contention is the independent intervening cause that clearly resulted in this accident was the undisputed negligence of Domingo in failing to stop at the Canal Street stop sign as required by New Mexico law. Unquestionably a party is entitled to an instruction based on his theory of the case if there is evidence in the record to support it. Clifton v. Mangum, 366 F.2d 250 (10th Cir. 1966). In New Mexico an independent intervening cause will prevent recovery if the act or omission of a wrongdoer (1) interrupts the natural sequence of events following from the first act or omission; (2) turns aside their cause; (3) prevents the natural and probable results of the original act or omission; and (4) produces a different result that could not have been reasonably foreseen. Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955). Appellant failed, however, to present any evidence that Domingo’s running of the stop sign produced a result that could not have been reasonably foreseen. The evidence showed that Southern Pacific knew a high percentage of motorists failed to stop at their railroad crossings. Brakeman Crump testified that he was concerned the Lopez truck might not stop before entering the crossing. • No evidence was offered indicating Domingo’s failure to stop produced a result that could not be reasonably foreseen to be a result of appellant’s failure to provide adequate warning devices and/or failure to properly blow the train whistle. We therefore find no error in the trial court’s refusal to instruct the jury on independent intervening cause.

Appellant's third argument is the trial court erred in submitting to the jury issues on the train’s speed, failure to warn, proper lookout, and the adequacy of lights on the railroad engine. Appellant’s position is there was no substantial evidence to support these issues. The trial court, as part of .its instructions, stated the following:

[T]he deaths which Plaintiffs claim were proximately caused by one or more of the following claimed acts or omissions of negligence: The train whistle was sounded unreasonably late to avoid the danger of a crossing collision; Engineer Butchofsky did not keep a proper lookout and brakeman Crump did not timely warn' engineer Butchofsky of the approaching Lopez pickup truck; Engineer Butchofsky did not maintain proper control of the train’s speed so as to avoid placing city residents in danger and so as to avoid an accident at the city grade crossing; The Southern Pacific did not operate its locomotive with adequate lights, including a moving headlight, to give motorists reasonable warning of the approach of a train;
There is no law that regulates the speed of a railroad train except the basic principle that it shall exercise ordinary care, and therefore any speed consistent with such care is lawful and proper.

With respect to the issue of speed, appellant .argues that its train was within the 60 miles per hour speed limit. Hence, the court should not have allowed the train’s speed to be an issue. In light of the circumstances surrounding this case, however, we" disagree with appellant’s contention. There is evidence suggesting the train was traveling 60 miles per hour as it approached a residential subdivision’s only major access to the City. Because this access was used extensively by city-bound traffic, we believe it was proper for a jury to decide whether the train was approaching the crossing at a reasonable speed. Another reason for instructing on the train’s speed is so that the jury could determine whether appellant failed to adequately warn motorists of an approaching train. Landers v. Atchison, T. & S. F. Ry. Co. (II), 73 N.M. 131, 386 P.2d 46 (1963).

Appellant next states the court erred in allowing the jury to determine whether the train whistle was blown long enough to give motorists adequate warning. Appellant suggests the only evidence relating to the train whistle’s blast came from Mrs. Greenwood and her testimony is merely negative evidence that is entitled to no weight. We disagree. There is testimony from Crain that he too heard only a short blast; Mrs. Adams, in her deposition, testified the train did not blow its whistle until it was about a block from the crossing. Needless to say, there is sufficient evidence on the train whistle issue to send it to the jury. See Union Pac. Ry. Co. v. Burnham, 124 F.2d 500 (10th Cir. 1941).

Appellant argues there was no dereliction of duty in not equipping the train with a movable headlight. Secondly, there was insufficient evidence supporting appellees’ claim that engineer Butchofsky failed to keep a proper lookout and that brakeman Crump failed to give a warning. We believe there is sufficient evidence warranting a jury instruction on these two issues and thus will belabor the point no further.

With respect to keeping a proper lookout, appellant suggests the trial court should have given appellant’s requested instruction concerning the right of the crew to assume Domingo would stop at the crossing. While this specific instruction was not given it is clear the subject was thoroughly covered in the trial court’s foreseeability instruction and thus appellant suffered no prejudice.

Appellant alleges the court erred in submitting to the jury the issue of adequacy of warning devices at Canal Street crossing. It is appellant’s contention that because New Mexico follows the stop, look and listen rule the railroad company is not negligent in failing to maintain' automatic protection devices unless the crossing is more than ordinarily hazardous. 74 C.J.S. Railroads § 727. Although New Mexico courts have not defined the standard of care of a railroad for placing warning devices at public highway crossings we can infer from Landers v. Atchison, T. & S. F. Ry. Co. (II), supra, that a railroad is expected to exercise the standard of care of a reasonably prudent person. Under this standard we can infer that New Mexico would require railroads to give reasonable and timely warning of approaching trains. And whether reasonable care and prudence require under all the circumstances of this case that special warning facilities be maintained at a crossing is a question of fact for the jury. See Union Pac. Ry. Co. v. Lumbert, 401 F.2d 699 (10th Cir. 1968); Chicago & N. W. Ry. Co. v. Golay, 155 F.2d 842 (10th Cir. 1946). Appellant nevertheless argues the only evidence relating to inadequate warning devices comes from Baerwald, whose testimony was purely speculative. Baerwald testified that in his opinion the stop signs and crossbucks at Canal Street crossing were inadequate warning devices, that intermittent interruptions along Canal Street partially obstructed one’s view of approaching trains and that a nonrevolving train headlight could easily be confused with lights along White Sands Boulevard. We do not believe Baerwald’s testimony is so unrelated to the circumstances surrounding the accident as to be of no probative value. Whether Baerwald should have testified as an expert witness is a discretionary matter for the trial court. Landers v. Atchison, T. & S. F. Ry. Co. (I), 68 N.M. 130, 359 P.2d 522 (1961). And the weight to be given his testimony is for the jury rather than an appellate court. See Phelps Dodge Corp. v. Atchison, T. & S. F. Ry. Co., 400 F.2d 20 (10th Cir. 1968).

Appellant’s final argument is directed toward third party defendant. Appellant contends the court erred in granting the City of Alamogordo’s motion for a directed verdict because many of the hazardous conditions, such as dirt mounds, utility poles and vegetation along Canal Street were under the City’s control. The general rule is, however, “that in the absence of a statute a highway authority is not liable for personal injuries because it has allowed the view of an intersection to be obscured by high grass, weeds or bushes which have grown up in a portion of the street or along its boundary.” Hidalgo v. Cochise County, 13 Ariz.App. 27, 474 P.2d 34, 35 (1970). Nor do we believe the City was responsible for the signals at the railroad crossing; generally it is the railroad’s duty to provide adequate warnings at its own crossings. See Missouri-Kansas-Texas Ry. Co. v. Hayes, 445 P.2d 249 (Okla.1968). Without any statutory authority imposing a duty on the City to install and maintain railroad signs on crossings owned by the railroad, we do not believe the City is liable for the inadequate warning devices.


author: TRASK, Circuit Judge:

text:
    UNITED CONTINENTAL TUNA CORPORATION, a corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. John A. KROH, Sr., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    Nos. 72-1189, 73-2417.
    United States Court of Appeals, Ninth Circuit.
    June 24, 1974.
    Rehearing Denied Aug. 21, 1974.

      Francis J. MacLaughlin (argued), Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for plaintiffs-appellants.
    Paul Gary Sterling (argued), Admiralty & Shipping Section, U. S. Dept, of Justice, San Francisco, Cal., for defendant-appellee.
    Before KOELSCH, HUFSTEDLER and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

This case requires us to consider the interrelationship of the 1960 amendments to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, as amended, September 13, 1960, Pub.L. 86-770, § 3, 74 Stat. 912; the Public Vessels Act, 46 U. S.C. §§ 781-790, and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. It arises in the context of two suits brought by the owners of a fishing vessel who allege that the boat’s sinking was caused by the U.S.S. Parsons, a naval destroyer and public vessel of the United States.

In late 1969, United Continental Tuna Corporation (Tuna Corporation) with funds furnished by American investors purchased a fishing vessel, the M.V. Orient, and refitted it at considerable expense. Tuna Corporation was organized as a Philippine corporation to enable the boat to operate in the Republic of the Philippines. On its first voyage it was overhauled and hailed 70 miles outbound from San Pedro by the U.S.S. Parsons; a collision followed which resulted in the sinking of the Orient with total loss. The corporation filed an action in District Court against the United States to recover its loss under both the Suits in Admiralty Act (SIA) and the Public Vessels Act (PVA). The District Court granted the United States’ motion for summary judgment and this appeal followed. During the pendency of that action the corporation was dissolved and its rights to recover for the loss of its sole asset were distributed to its shareholders. The shareholders commenced an alternative or back-up action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA) alleging in substance that if they had no remedy for their cause of action under either SIA or PVA they had a remedy under FTCA. The two appeals were consolidated for argument and will be considered together here.

The basis upon which the motion for summary judgment was granted in the first action was that the appellant was a “foreign national” and therefore subject to section 5, the reciprocity provision of the PVA, 46 U.S.C. § 785. That is, because the appellant was incorporated under the laws of the Republic of the Philippines, the court ruled that the appellant had to demonstrate that the Philippine government would consent to be sued if an action were brought against it by a United States citizen under like circumstances. Relatedly, the court concluded that the individual shareholders of Tuna Corporation had no greater rights derivatively than the corporation had originally. Since the appellant failed to demonstrate reciprocity, the court dismissed the suit on jurisdictional grounds. In so doing, the court implicitly rejected the argument that the appellant could maintain its action under the SIA alone, without reference to the PVA, and thereby avoid the application of the reciprocity requirement.

Prior to 1920, the United States claimed complete sovereign immunity from all claims arising out of collisions with its vessels. The first inroad upon this absolute immunity came in 1920 with the enactment of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. Section 742 of the SIA provided:

“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and •possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States . provided that such vessel is employed as a merchant vessel . . . .” (Emphasis added.)

Thus, the government waived its immunity from liability for damages, but only' in instances where United States “merchant” vessels or cargo were involved.

The second expansion occurred in 1925 with the passage of the Public Vessels Act, 46 U.S.C. §§' 781-790. This Act further waived sovereign immunity by permitting actions against the United States involving public vessels. It was in the PVA, however, that the reciprocity limitation previously discussed was introduced. No such requirement was contained in the earlier SIA. There were other differences between the two admiralty statutes as originally enacted, including dissimilar venue provisions and prejudgment interest allowances. However, over the years, the courts have consistently construed the two maritime statutes together as constituting a complementary plan for the recovery of damages caused by government-owned vessels. Thus in Calmar SS Corp. v. United States, 345 U.S. 446, 451, 73 S.Ct. 733, 736, 97 L.Ed. 1140 (1953), the Supreme Court interpreted the two acts as “manifestations of a single larger purpose, jointly forming a rational system free of random omissions and exceptions.” See also Aliotti v. United States, 221 F.2d 598, 602 (9th Cir. 1955); Mejia v. United States, 152 F.2d 686, 687 (5th Cir. 1945).

In 1960, however, this statutory scheme was disrupted by the adoption of an amendment to section 742 of the Suits in Admiralty Act. The amendment deleted the jurisdictional language in the first sentence of section 742 which had limited that Act to suits involving United States merchant vessels. In its place, a broad, new jurisdictional statement was substituted:

“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . . . .”

No mention of the PVA reciprocity provision appears in either amended section 742 or its legislative history. Indeed, the legislative history rather reveals that this amendment emerged as a hasty afterthought in a remedial effort that was primarily directed at eliminating the jurisdictional confusion between the admiralty statutes and the Tucker Act. There is only the unelaborated observation that: “A substantial portion of the jurisdictional uncertainty in this area is attributable to confusion in establishing whether a vessel is a ‘merchant vessel’ or a ‘public vessel.’ ” S. Rep.No.1894, 86 Cong., 2d Sess., 1960 U. S.Code Cong. & Admin.News 3583, 3586.

Notwithstanding the many ambiguities inherent in this legislative action, the majority of courts considering the 1960 amendments have interpreted the SIA as presently encompassing all maritime claims against the United States, regardless of the type of vessel involved. See, e. g., Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 169 (2d Cir. 1968); T. J. Falgout Boats, Inc. v. United States, 361 F.Supp. 838, 841, 842 (C.D.Cal.1972); Richmond Marine Panama, S.A. v. United States, 350 F.Supp. 1210, 1219-1221 (S.D.N.Y.1972); but see J. W. Petersen Coal & Oil Co. v. United States, 323 F.Supp. 1198 (N.D.Ill.1970). Relatedly, in Amell v. United States, 384 U.S. 158, 164, 86 S.Ct. 1384, 1388, 16 L.Ed.2d 445 (1966), the Supreme Court observed:

“In 1960, Congress addressed itself to the jurisdictional overlap between the Tucker Act and the Suits in Admiralty Act .... Simultaneously, Congress abolished the distinction between public and merchant vessels, a matter which had sorely confused attorneys and had caused misfilings in the past . . . . ”

Since the favored literal reading of amended section 742 would certainly support maintenance of the appellant’s suit under the SIA, we believe that the District Court erred when it dismissed the action as predicated upon that Act. Moreover, since section 785 of the PYA explicitly restricts the operation of the reciprocity requirement to that act alone, we see no reason to import the restriction to the SIA. Cf. De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 145-146 (5th Cir. 1971). We acknowledge the government’s concern that such a conclusion permits the PVA reciprocity provision to be circumvented in a manner neither explicitly authorized nor perhaps contemplated by Congress. However, we note that the more stringent venue requirements of the SIA may prohibit some foreign nationals from proceeding under the Act, and thus leave the PVA and its reciprocity clause some continuing efficacy.

Finally, we note that our conclusion here is consonant with the modern view which liberally construes waivers of governmental immunity. As Judge Brown observed in Gulf Oil Corp. v. Panama Canal Co., 407 F.2d 24, 28 (5th Cir. 1969):

“In the structure of the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., the Public Vessels Act, 46 U.S.C.A. § 781 et seq., and the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) which expose the government in all of its sovereign glory to almost unlimited liabilities comparable to private parties, the approach is to construe the waiver sensibly, naturally, which means most of the time, literally.”

Since we conclude that the appellant’s action is' maintainable under the SIA, the necessary corollary is that this action is not cognizable under the FTCA. 28 U.S.C.A. § 2680(d).

We therefore reverse and remand the first action (Appeal No. 72-1189) for a trial on the merits, and affirm the dismissal of the appellant’s second action (Appeal No. 73-2417).

      . “785. Suits by nationals of foreign governments
      “No suit may be brought under sections 781-790 of this title by a national of any foreign government unless it shall appear to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue. in its courts.”

      . See note 1 supra.

      . Under the SIA, venue lies only in the district court for the district in which the plaintiff resides or has his principal place of business, or in which the vessel or cargo charged with liability can be found. 46 U.S. C. § 742. The PVA, however, authorizes suit in any district court of the United States if the plaintiff neither resides nor has a principal place of business in the United States and the United States vessel is outside United States territorial waters. 46 U. S.O. § 782.

      . See Richmond Marine Panama, S.A. v. United States, 350 F.Supp. 1210, 1219-1221 (S.D.N.Y.1972).

      . Both the SIA and the PVA contain a 2-year statute of limitations, while the Tucker Act (authorizing suit in the Court of Claims) has a 6-year limitations period. A mistake in selecting the correct statute and court frequently resulted in the loss of all relief. It was this fact which primarily motivated the legislative action which resulted in the 1960 amendments.

      . See note 3 supra.