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Western Truck Lines, Ltd., a Corp. v. Berry

Supreme Court of Arizona

May 2, 1938

WESTERN TRUCK LINES, LTD., a Corporation, and BILL MOREY, Also Sometimes Known as and Called D. A. MOREY, Appellants,
v.
VIVIAN BERRY, as Administratrix of the Estate of W. S. BERRY, Deceased, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. Henderson Stockton, Mr. Emmett R. Feighner and Mr. Eli Gorodezky, for Appellants.

Mr. Albert W. Gurtler and Messrs. Laney & Laney, for Appellee.

OPINION

Page 998

[52 Ariz. 40] ROSS, J.

W.S. Berry was killed in a collision between his automobile and a truck of the Western Truck Lines driven by Bill Morey, and this action was brought by Vivian Berry as his personal representative to recover damages to his estate on account of such death. The Western Truck Lines and Morey were made defendants. From a judgment and an order overruling a motion for new trial, defendants have appealed.

As is usual in such cases, there is a sharp conflict as to how the accident occurred and whose was the fault. We state the controlling facts before taking up the assignments of error.

The Gilbert highway runs east and west and the Mesa-Chandler highway runs north and south and intersect about 3 miles north of Chandler. The latter is a through highway and approaches to it are posted with "Stop" signs. The fatal accident occurred at the above intersection February 6, 1937, at about 7:30 P.M. The deceased was driving with his wife and their two small children in a Whippet automobile, traveling easterly on the Gilbert highway. The truck was traveling southerly along the Mesa-Chandler highway. As the Whippet was proceeding across the intersection, intending to make a left-hand turn onto the Mesa-Chandler highway, or after such turn was [52 Ariz. 41] completed plaintiff insists, it and the truck collided, the points of contact being the left forefront of the Whippet and the right forefront of the truck. The force of the impact threw Berry out of his car onto the pavement and killed him. The Whippet was turned around and left near the south line of the Gilbert highway -- in the intersection, as we gather from the testimony, and facing south. The truck from the point of collision passed across the Gilbert highway and stopped in a borrow pit about 40 feet from the southeast corner of the intersection, facing in a southeasterly direction. An automobile going north on the Mesa-Chandler highway, just at the time, was rapidly approaching the intersection, and the driver of the truck (Morey) testified:

"Well, I saw there was going to be a wreck there and I looked up the road to see where this car was coming that was coming north, where it would be at the time I got into the intersection, and I didn't know which of the three of us was going to be in it; and what I was loaded with I knew it would be very dangerous to have any concussion or wreck with that load, so I saw the Gilbert road and I swung to my left down the Gilbert road to clear everything."

As shown by Morey and other witnesses, the truck was loaded with dynamite.

Page 999

It was the contention of the plaintiff that Morey, the driver, was traveling at the rate of 50 miles an hour and became frightened because of the dangerous character of his load and turned over onto the left side of the highway in the pathway of the Whippet and thereby caused the accident.

The defendants contend that Berry drove into the main thoroughfare without stopping or giving any signal whatever of his intentions and that it was impossible to stop the truck, after the driver discovered Berry's movements, so as to avoid the accident.

[52 Ariz. 42] The issue of negligence the jury decided in favor of plaintiff. It only remains to be seen if the case was ...


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