ROSALYN A. SEILER, as Executrix of the Estate of FRED SEILER, Deceased, Appellant,
J. A. WHITING, Also Known as JAY WHITING, and A. C. WHITING, E. I. WHITING, E. J. WHITING and R. E. WHITING, Co-partners as WHITING BROTHERS, Appellees
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Mr. L. J. Cox, for Appellant.
Messrs. Struckmeyer & Flynn, for Appellees.
[52 Ariz. 544] LOCKWOOD, J.
Rosalyn A. Seiler, as executrix of the estate of Fred Seiler, deceased, hereinafter called plaintiff, brought suit against A. C. Whiting, E. I. Whiting, E. J. Whiting and R. E. Whiting, co-partners as Whiting Brothers, and J. A. Whiting, also known as Jay Whiting, hereinafter called defendants, to recover damages for the death of her testator, which she claimed occurred through the negligence of J. A. Whiting. The case was tried before a jury which returned a verdict in favor of defendants, and after the usual motion for new trial was overruled, this appeal was taken.
There are twenty-six assignments of error, which are argued under ten propositions of law, as required by the rules. We think, however, it will be more satisfactory to discuss the assignments under four groups, the first going to the withdrawal by the court from the consideration of the jury of certain allegations of negligence by the defendants; the second covering the instructions given by the court to the jury; the third being the failure of the court to instruct on the law of contributory negligence; and the fourth [52 Ariz. 545] referring to the failure of the court to give instructions asked by the plaintiff.
Certain facts of the case are undisputed. J. A. Whiting was driving a motor truck belonging to Whiting Brothers from Ash Fork to Prescott, at about the hour of 1:10 A.M. August 2, 1936. While so doing, the truck came into collision with a Hudson coupe driven by deceased Seiler, who had with him a companion named Williams. As a result of the collision, the Hudson coupe was badly damaged, and Seiler and Williams were so seriously injured that they died shortly after the accident, without making any statement as to the circumstances surrounding it. This left J. A. Whiting as the only eye-witness of the accident and the circumstances immediately preceding it, his co-driver, Ralph Spillsbury, being asleep at the time of the collision in a sleeping compartment built just back of the driver's seat.
Plaintiff brought this action alleging that the accident was caused by the negligence of J. A. Whiting. This negligence, it was claimed, consisted of the following distinct and separate matters: 1. That the truck was being operated at a rate of speed unlawful for vehicles of that description; 2. That a part of the body of the truck exceeded a total outside width of eight feet; 3. That the truck was driven at the time of the collision to the left of the center of the road; 4. That the truck was loaded in a careless and unsafe manner with gasoline, which was thrown over Seiler and became ignited and burned him; 5. That the truck was driven at a greater speed than was reasonable and prudent, considering the condition of the highway at the point of collision; 6. That Whiting knew, when he first saw the Hudson coupe, that Seiler did not realize the relative position of it to the truck, and that if they continued in the same course there would be a collision, [52 Ariz. 546] but that he, Whiting, did know that fact and, notwithstanding, made no effort to prevent the collision; 7. That the truck was operated without having its headlights turned on until within a few feet of the automobile, and they were then suddenly flashed on so as to blind the driver of the coupe; 8. That the driver of the truck had not reached a safe age of maturity so as to be able to operate a truck in a careful and prudent manner; 9. That the driver of the truck had been on duty for a period of ten consecutive hours next immediately preceding the time of the collision, and was, therefore, not in a fit physical and mental condition to properly operate the truck; 10. That the truck was operated
with glaring and dazzling headlights, and that the driver failed to dim the same before reaching the coupe; and 11. That the truck did not carry clearance lights on the left side which were visible under normal conditions, as required by section 1623, Revised Code 1928.
Defendants answered with a general denial, and a further allegation that the accident was directly caused by the negligence of the deceased in driving the Hudson coupe at a dangerous and unreasonable rate of speed, to-wit: 60 miles per hour, on the left-hand side of the road, and without keeping a proper lookout. They further set up contributory negligence consisting of the same matters as the sole negligence first alleged.
After plaintiff had put on her case, the defendants moved for an instructed verdict, which was denied. The defendants then offered evidence and renewed their motion at the close of the case, which was also denied. The court, however, in instructing the jury, told them:
"There are numerous acts of negligence alleged in this complaint, and the Court has found that is immaterial [52 Ariz. 547] as there is no evidence to submit these to you with the exception of one particular ...