APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and case remanded with instructions.
Mr. W. J. Van Spanckeren, and Mr. R. H. Renaud, for Appellant.
Messrs. Snell & Strouss, and Mr. Mark Wilmer, for Appellees.
[59 Ariz. 95] LOCKWOOD, C.J.
This is an appeal by Philip Keeler, plaintiff, from a judgment rendered on an instructed [59 Ariz. 96] verdict in favor of Maricopa Tractor Company, a corporation, and Fred Behncke, defendants.
The assignments of error present, in substance, but one question, and that is whether there was sufficient evidence introduced in the case to take it to the jury. In considering this question, we must, of course, take the evidence as strongly as is reasonably possible in favor of plaintiff, for it is only if there is no evidence that would justify a jury in finding the issues in his favor that the court is authorized to instruct a verdict against him. With this rule guiding us, let us consider the evidence as shown by the record.
On April 1, 1939, plaintiff was riding a motorcycle over the public paved highway extending from the town of Gilbert to the main Tucson-Chandler-Phoenix highway. About four miles south of Gilbert he passed over a slight rise in the pavement and noticed a truck standing in field to the west of the fence line on the west side of the highway, and approximately 1800 feet distant. Between the rise in the highway and the location of the truck when it was first seen by plaintiff is the residence and farm of Grant Peterson, situated on the east side of the highway. Leading into this highway from the Peterson yard are two private driveways at right angles to the highway and lined with tamarisk trees, the northern one being located about 650 feet from the point of collision, and the southern about 375 feet. Plaintiff was en route to his home at Chandler and was thoroughly familiar with the highway. On previous occasions he had known of cattle and horses emerging from the Peterson driveways and running along and across the highway, and had had a couple of narrow escapes from collision with them, and for that reason he was afraid of a repetition of such incidents. Until he reached a point in the vicinity of the north driveway he had been looking [59 Ariz. 97] straight down the highway and at no time was there any truck or trailer on or moving onto the pavement within the range of his vision. When he had almost reached the north driveway he turned his attention to the left in order to watch the Peterson driveways to see if any stock emerged therefrom, and continued to do this until he had reached a point in the vicinity of the south driveway. The next thing he knew was that he was in the hospital, badly injured.
Defendant Behncke testified that just before the time of the accident he was driving a Ford truck with a two-wheeled trailer attached, owned by the corporate defendant, the total length of the truck and trailer being between 41 and 43 feet, and had gone into the field on the west side of the highway to get a hay rake belonging to the company. It was loaded on the trailer, and he then drove the truck to a point on the right-hand right to way of the highway, about 15 feet from the edge of the pavement so that he could have an unobstructed view of the highway and see if traffic were approaching. He saw plaintiff, but believing the latter was far enough away so that it was safe to proceed, threw his truck into low gear and started to go upon the paved portion of the highway and to make a left-hand turn to the north. He did not look again to observe plaintiff's position for about fifteen seconds, and when he did look the front of the truck was in the center of the pavement. He then noticed that plaintiff was approaching him at a high rate of speed and was not looking his way but to the east of the highway. He continued crossing the highway and turned to the left, and as he was engaged in this left-hand turn plaintiff apparently saw him, for the former began to "jiggle his handle bars" and in a few seconds the motorcycle struck the trailer in front of its wheel and its frame, and as a result of this collision plaintiff was seriously injured. Behncke also [59 Ariz. 98] testified that his speed from the time he started to enter the highway until the accident occurred was not less than three nor more than five miles per hour, and that at all times plaintiff was on his right side of the center of the highway.
The question is whether, upon this evidence, a jury would have been justified in finding that Behncke was guilty of any negligence whatever, which was a proximate
cause of the accident, for if he was, even though there might be evidence that plaintiff was also negligent, the case was one for the jury. Art. 18, sec. 5, Const. of Arizona.
It is undisputed that Behncke was attempting to enter the public highway from private premises and through a private right of way, and not upon an intersecting public highway, and was making a left-hand turn. The question is whether it could reasonably be ...