APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with instructions.
Mr. Frank Dykes and Mr. E. E. Selden, for Appellant.
Mr. F. C. Struckmeyer, Mr. James E. Flynn and Mr. F. C. Struckmeyer, Jr., for Appellees.
[50 Ariz. 96] LOCKWOOD, J.
This is an appeal from a judgment of the superior court of Maricopa county for defendants, in an action wherein Pablo Martinez was plaintiff and James Anderson and William F. Gollaher were defendants. The complaint set up, in substance, that while plaintiff was walking in an easterly direction, and on the south side of the Tempe-Mesa highway, defendant James Anderson, who was driving an automobile in the same direction on said highway, negligently and carelessly failed to use ordinary care to keep a lookout for pedestrians upon said highway, and by reason of such negligence ran into and seriously injured plaintiff. There were other acts of negligence set up by the complaint, but since it is admitted there was no evidence
to support them, we confine our summary to the one of which the case went to the jury. The defendants demurred to the complaint and then answered with a general denial and an allegation that the sole and proximate cause of the injuries to plaintiff was his own want of care. The demurred was overruled, and the case went to trial before a jury, which returned a general verdict in favor of defendants, whereupon this appeal was taken.
There is no reporter's transcript, the case coming up on a bill of exceptions. From this bill it appears that the evidence submitted to the jury was, in substance, as follows: About 11 P.M. in the evening of the 6th of April, 1935, defendant James Anderson, in company with his wife and her mother, was driving a Chevrolet automobile on the Tempe-Mesa highway, and while so doing the automobile collided with plaintiff, injuring him quite seriously. Plaintiff testified, in substance, that he had been driving in his automobile that evening and had run out of gas, and that he was walking along the south side of the highway, and near to the paved portion thereof usually traveled [50 Ariz. 97] by automobiles, in search of a place where he might secure gas for his car. Seeing defendant's automobile approaching about 600 feet to the west, plaintiff stepped onto the southerly edge of the paved portion of the highway, and commenced to signal Anderson to stop his automobile an to assist him. The highway at this point was broad and straight, and plaintiff thought it was safe for him to give such signal from the place where he was standing, for the reason that, if Anderson did not stop and assist him, he had ample time and opportunity to see him and pass him on the north side of the highway, which was unobstructed. Defendant, however, did not swerve his automobile, but ran straight into him, plaintiff. This was substantially the case in favor of plaintiff.
Defendant's evidence was to the effect that Anderson, his wife, and his mother-in-law were returning from a picture show in Phoenix at the time of the accident. They were sitting in the front seat of the automobile and their lights were in good condition, so that if plaintiff had been standing on or near the southerly edge of the pavement, as he testified, Anderson would have seen him in ample time to avoid an accident. Plaintiff, however, suddenly stepped onto the highway from the darkness and started across it in a northerly direction, so near to the car that it was impossible to avoid the collision. Anderson, immediately after the accident, smelled liquor upon plaintiff's breath, and one of his witnesses testified that the morning after the collision the plaintiff stated to him that he did not know how the accident occurred, that he was drunk at the time. Other witnesses for defendants testified that two men who were with plaintiff when he ran out of gas had told them that Martinez was drunk the night of the accident. The doctor at the hospital, where plaintiff was taken immediately after [50 Ariz. 98] the accident, testified that, in his opinion, the plaintiff had not been drinking, while plaintiff insisted that he had not had anything to drink prior to the time of the accident, and his two companions denied having stated that plaintiff was drunk the night of the accident, and testified that he was not under the influence of liquor.
It will be seen from this evidence that the jury might properly have come to one of three conclusions as to the ultimate facts of the case, (a) that the collision occurred because defendant Anderson was not using due care in watching the highway at the time, (b) that he was using due care, but that plaintiff suddenly ran out upon the highway under circumstances which made it impossible for Anderson to avoid hitting him, and (c) that both plaintiff and defendant Anderson had failed to exercise due care in their actions at the time of and just before the accident.
The only assignments of error on this appeal go to the instructions. Plaintiff complains of six instructions which were given by the court, and also that the court failed to give two instructions requested by him. We think it unnecessary to quote all of the instructions complained of, for the legal question presented can be drawn from the two following ones:
"Now the burden is upon the plaintiff to prove to you every material allegation of the complaint by a preponderance of the evidence before he is entitled to recover. As I say, the material allegations of the complaint are that the defendant was guilty of the negligence as I stated to you, alleged in the complaint, and that the plaintiff was at the time and place in the exercise of ordinary care." (Italics ours.)
"In other words, if you believe from the evidence, gentlemen, that the plaintiff stepped upon the south portion of the paved highway ...