CHARLES W. COE, Appellant,
WILLIAM F. HOUGH, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Messrs. Moore & Shimmell, for Appellant.
Mr. F. H. Lyman and Mr. Don C. Babbitt, for Appellee.
[42 Ariz. 294] ROSS, C. J.
The appeal is from a verdict and judgment for damages for personal injuries plaintiff Hough claims he sustained by being run down by defendant Coe with his automobile on the evening of December 31, 1931, between 6 and 7 o'clock, at Twenty-Fourth Street between East McDowell Road and East Van Buren Street, in Phoenix.
[42 Ariz. 295] The grounds of appeal are that the court erred in refusing to give instructions asked by defendant, and in giving to the jury erroneous instructions. It is necessary to state the issues and the evidence thereon to an understanding of the legal propositions submitted and for a proper consideration and disposition thereof.
The specific negligence alleged in the complaint is that Twenty-Fourth Street, between the termini mentioned, is an unimproved country road bounded on each side by ditches and uneven surfaces and without sidewalks; that while plaintiff was walking south along the right or west side of said Twenty-Fourth Street the defendant "did then and there drive his said automobile at a careless and imprudent speed and greater than was then and there reasonably proper and safe, having due regard to the traffic, surface and width of the highway, and of all other conditions then and there existing and at such a rate of speed as to endanger the life and limb of said plaintiff, and the said defendant so driving his automobile as aforesaid did approach the plaintiff from behind and drove upon and against said plaintiff striking him, the said plaintiff upon the back with the front end of said automobile thereby throwing him violently to the ground."
The answer consists of a general denial, an allegation that the accident was caused by the sole negligence of plaintiff, and that plaintiff contributed to his own injury. These defenses are stated in the following language:
"Further answering the complaint, the defendant alleges that after dark on the evening of the 31st day of December, 1931, he was driving an automobile in a southerly direction on Twenty-fourth Street between the intersections of East Roosevelt and East Van Buren streets; that that portion of Twenty-fourth Street between the intersections aforesaid was [42 Ariz. 296] at said time, and for several days prior thereto had been, under reconstruction or in course of improvement by the County of Maricopa, and at said time there were piled along and upon the east half of the traveled portion of said highway large quantities
of gravel and rock which had not then been spread over the traveled portion of said highway, and by reason of which only the west half of the traveled portion of said highway was in condition to be used by traffic; that at said time there were a number of automobiles going north and a number going south along said highway, as the result of which the road was shrouded in dust, which made it impossible to see more than five or six feet ahead of the automobile which defendant was driving. That to the west of the main traveled portion of said highway and along the highway right-of-way, and extending from East Van Buren Street to East Roosevelt Street there was at said time, and for a number of years prior thereto had been, a smooth, well-defined, though unpaved, sidewalk along which pedestrians upon said highway were accustomed to walk, all of which defendant alleges was well known to the plaintiff. That while the defendant was driving south on said highway at the time and place aforesaid, at a speed of from ten to twelve miles an hour, the defendant observed the plaintiff immediately in front of the left fender of his car and at a distance of some five or six feet therefrom, whereupon the defendant immediately applied brakes to his car, said brakes being in good and efficient condition; but before said car could be brought to a stop it struck the plaintiff, knocking him down. . . .
"The defendant alleges that the plaintiff's negligence was the sole and proximate cause of his being struck by the defendant's car as aforesaid, and of any injuries which resulted to the plaintiff therefrom, in this: that the plaintiff was negligent in being and traveling in the center of said highway under the circumstances and conditions as aforesaid with reference to dust and darkness, when there was available to him, of his knowledge, a well-defined sidewalk or [42 Ariz. 297] pathway along the east side of the right-of-way of said highway and to the east of the main traveled portion thereof, which said sidewalk the plaintiff could and, under the circumstances, should have used.
"Further answering said complaint, the defendant alleges that the plaintiff was guilty of negligence, which was the proximate cause of his said injuries and which contributed thereto, in this: that the plaintiff was negligent in being and traveling in the center of said highway under the circumstances and conditions as aforesaid with reference to dust and darkness, when there was available to him, of his knowledge a well-defined sidewalk or pathway along the east side of the right-of-way of said highway and to the east of the main traveled portion thereof, which said sidewalk the plaintiff could and, under the circumstances, should have used."
According to the evidence in support of the complaint, plaintiff, who lived on Twenty-Fourth Street, had gone north to his postoffice box at the corner of McDowell Road and Twenty-Fourth Street for his mail, and was returning south along the west side of Twenty-Fourth Street when near his home he met S. G. Lowe and his daughter Mrs. J. A. Morris proceeding north on the east side of said Twenty-Fourth Street in an automobile. He crossed the road to the automobile and gave to Mrs. Morris a letter that had come to his mail-box. He returned to the west side of the road and was proceeding on south towards his home when the defendant, who was traveling in the same direction, without any warning whatever, ran into him striking him in the back so that he was thrown over the left fender onto the running-board and thence to the ground. At the time it was turning dark but persons could be seen on the streets from two to three hundred feet. Some of the cars were putting on their lights. There was some dust in the air. Just at the time of the accident there was no automobile with headlights on going north. There [42 ...