PAULINE SCARBOROUGH and D. C. SCARBOROUGH, Her Husband, Appellants,
CENTRAL ARIZONA LIGHT AND POWER COMPANY, a Corporation, and JOHN DOE, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.
Mr. V. L. Hash, for Appellants.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellees.
[58 Ariz. 53] LOCKWOOD, C.J.
Pauline Scarborough, called plaintiff, and D. C. Scarborough, her husband, brought suit against Central Arizona Light and Power Company, a corporation, called defendant, and John Doe, to recover damages which plaintiff alleged she had incurred through the negligence of defendant. The case came on for trial before a jury, and after plaintiff had made her opening statement, defendant moved that the jury be instructed to return a verdict for it on the ground that the opening statement of counsel did not show facts sufficient to sustain a verdict against defendant. The court took a recess, and after discussing with counsel the issues of the case, counsel for plaintiff made a specific and detailed avowal of what he expected to prove, whereupon the court granted the motion of defendant, and instructed the jury to return a verdict in its favor, which was done, and in due course this appeal was taken.
[58 Ariz. 54] The suit was based on the alleged negligence of defendant, and unless plaintiff could present evidence from which a jury might reasonably infer that defendant had been negligent in some duty which it owed to her, the court would have been compelled to instruct a verdict in favor of defendant. If, however, it appeared before the presentation of evidence had actually begun that plaintiff could not present enough to sustain a verdict in her favor, it was highly commendable for the court to instruct a verdict as soon as that fact appeared, and thus avoid a useless expenditure of both time and effort.
We must assume for the purpose of this appeal that plaintiff could have proved to the satisfaction of the jury every material matter set forth in her avowal, and the question is whether the facts set forth in the avowal would have been sufficient to sustain a verdict in her favor. If it would have, the court erred in directing the instructed verdict. If not, its action was correct.
In Salt River Valley Water Users' Ass'n v. Compton, 39 Ariz. 491, 8 P.2d 249, 251, the court, quoting from Baltimore & P.R.R.. Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506, defined "negligence" as follows:
"'Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission.'" And we have held that an action for negligence only lies when the alleged negligent act is a violation of a duty owed to the injured party. Salt River Valley Water Users' Ass'n v. Delaney, 44 Ariz. 544, 39 P.2d 625; Salt River Valley Water Users' Ass'n v. [58 Ariz. 55] Compton, 40 Ariz. 282, 11 P.2d 839. The question then is primarily, was the defendant guilty of a violation of any duty which it owed to the plaintiff.
A summary of the avowal is as follows: Defendant was engaged in the business of furnishing gas and electricity in the city of Phoenix, and had previously furnished them to certain premises at 513 N. 13th Street. The former tenants had moved from the premises and the company had, under instructions, cut off the
supply of gas and electricity therefrom. Some time thereafter the daughter of plaintiff, who had rented the premises, requested that the gas and electricity be turned on immediately. In the meanwhile the new tenant had employed her mother, the plaintiff, to clean up the premises and arrange for moving in of their furniture, and while she was inside with the doors and windows of the house closed, and engaged in cleaning the said premises as aforesaid, defendant turned on the gas at its meter outside and back of the house without examining the condition of the gas pipes inside the house. Some of these pipes were uncapped, which permitted the gas to permeate the house, and plaintiff breathed in some of this gas and thereby became injured. The particular negligence which plaintiff alleged was that defendant had failed to cap the gas pipes inside the house when it disconnected the service previously and could have, by an inspection, determined that the pipes were uncapped when it turned on the gas on December 13th. It was further avowed, in response to questions by the court, that so far as plaintiff knew or could prove, the pipes in the house and the connections inside were owned by the owner of the building and not by defendant, and that plaintiff would be unable to prove that defendant had any knowledge that the gas pipes in the house were uncapped when the gas was turned on, unless she could establish such knowledge by cross [58 Ariz. 56] examination of the adverse party. There was, however, no avowal that this matter could be established even by such examination. Nor was there an avowal of any facts which gave defendant reasonable ground to believe the pipes were uncapped.
The question before us then is, was it the legal duty of defendant to inspect the pipes in the house in question, which were owned by and under the control of parties other than itself, in order to ascertain whether they were in proper ...