STANDARD OIL COMPANY OF CALIFORNIA, a Corporation, and W. J. KELLY, Appellants,
HELEN SHIELDS and J. HOWARD SHIELDS, Her Husband, Appellees
APPEAL from a judgment of the Superior Court of the County of Coconino. H. K. Mangum, Judge. Judgment affirmed with conditions.
Messrs. Wilson, Compton & Wilson, for Appellants; Messrs. Baker & Whitney, Mr. Lawrence L. Howe and Mr. Harold E. Whitney, of Counsel.
Mr. Henry C. McQuatters, Mr. Frank W. Beer, and Mr. William G. Christy, for Appellees.
[58 Ariz. 240] LOCKWOOD, C.J.
This is an appeal by Standard Oil Company of California, a corporation, and W. J. Kelly, defendants, from a judgment in favor of Helen Shields, plaintiff, for damages resulting from an [58 Ariz. 241] automobile accident. The jury returned a verdict in favor of plaintiff in the amount of $51,436.40. On the motion for new trial, the trial court granted a remitter of $8,000, thus reducing the amount of the judgment to $43,436.40, and it is from this latter judgment that the appeal is taken.
There are twelve assignments of error which raise seven propositions of law, which we shall consider in their order. The first two are that the evidence offered by plaintiff, together with the uncontroverted physical facts surrounding the accident, shows that the conclusion, which must have been reached by the jury to sustain the verdict, that defendant Kelly was guilty of negligence which was the proximate cause of the accident and that plaintiff was not guilty of contributory negligence, is such that it is either physically impossible or incredible beyond the ordinary experience of mankind, and a verdict based on evidence of that nature cannot stand.
Plaintiff frankly admits the rule of law to be as stated by defendants, but denied that the evidence, taken as a whole, makes it either impossible or incredible that the accident was due to defendant Kelly's sole negligence. This requires a consideration of the evidence.
The undisputed facts are as follows: On January 24, 1940, between six thirty and seven o'clock in the evening, plaintiff was driving a Plymouth automobile in a southerly direction, and defendant Kelly, who was at that time in the discharge of his duties as an employee of Standard Oil Company, was driving a Chevrolet pickup truck belonging to the company in a northerly direction, on the Cottonwood-Camp Verde highway in Yavapai County. At a point about thirteen miles south of Cottonwood the cars collided, and plaintiff was seriously injured as a result of the collision. The highway at the point of the collision is [58 Ariz. 242] an unpaved, graded and graveled road, with the usable portion at the time between twenty and twenty-two feet in width.
The real question on this phase of the case is whether at the time and point of impact the Plymouth was entirely on its right-hand of the center of the road, or partially at least on its left-hand of the center. The testimony of Kelly is that he was driving his car partly on his wrong side of the road when he noticed the lights of the Plymouth approaching him about 150 feet away and saw that it also was partially on its wrong side of the road. He immediately threw his car into second gear and sped up, turning sharply to his right to avoid a collision. The front of the Plymouth struck the left side of the Chevrolet, and he claimed that at the instant of impact that portion of the Plymouth which struck his car was on its wrong side of the center of the road. Plaintiff testified with equal positiveness that she was at all times on her own side of the road, and that the Chevrolet at the time and point of impact was on its wrong side of the road.
We have here a sharp conflict in the evidence, and if there were nothing more we would be bound to accept the verdict of the jury on this point. Nor do defendants deny this. Their contention is that the uncontroverted and uncontrovertible physical facts, as shown by various measurements and photographs of the damaged cars, which measurements and photographs plaintiff admits are correct representations of the condition of the cars and of the road immediately after the collision, show conclusively that it was impossible for the collision to have occurred as it did, if the Plymouth was entirely on its own side of the road.
At the oral argument in this court counsel for defendants made various physical demonstrations tending to support their theory on this point and [58 Ariz. 243] we were considerably impressed thereby. But, upon a more careful study of the exhibits, together with the oral evidence, we feel that while if we were sitting as triers of the facts we would be inclined to accept defendants' theory as the most probable, we cannot say that it was physically impossible or even reasonably incredible that the collision could have occurred when the Plymouth was entirely upon its
right side of the center of the road. It is admitted by defendant Kelly that immediately before the collision he was partially on his wrong side of the road and the measurements of the tracks taken immediately after the accident show this to be correct. He testified that he turned at an angle and attempted to get as far to his right side of the road as possible just before the impact. The appearance of the two cars after the accident shows conclusively that they came together at an angle, and not in a head-on collision. This confirms the testimony of Kelly that he was attempting to turn from his wrong side to his right side of the road just before the time of the collision. Their appearance also indicates that the blow was a glancing one and not a collision at right angles, but it is impossible to ascertain by the physical exhibits or the oral evidence at just what angle the impact occurred, and this is, of course, the vital issue. If the impact had been at right angles, considering the width of the road and the length of the cars, it would have been impossible for the Plymouth to have struck the Chevrolet as it did and still have ...