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Pearson & Dickerson Contractors, Inc. v. Harrington

Supreme Court of Arizona

May 17, 1943

PEARSON & DICKERSON CONTRACTORS, INC., a corporation, Appellant,
v.
JOHN W. HARRINGTON, a minor, by JAMES E. HARRINGTON, guardian ad litem, Appellee

APPEAL from a judgment of the Superior Court of the County of Yavapai. Levi S. Udall, Judge. Judgment affirmed.

Messrs. Baker & Whitney and Mr. Harold E. Whitney, and Messrs. Patterson & McFate, for Appellant.

Messrs. Morgan & Locklear, for Appellee.

OPINION

Page 382

[60 Ariz. 356] ROSS, J.

The plaintiff, John W. Harrington, a minor, brought this action by James E. Harrington, his father, as guardian ad litem, against defendant, Pearson & Dickerson Contractors, Inc., to recover damages for personal injuries sustained from being struck by a Ford truck of defendant's driven by Phil O. Ratliff, employee of defendant, on the Truck Route of Highway 89 about one-half mile east of the City of Prescott.

In its answer the defendant defended on the ground that the plaintiff was struck by its truck and injured, as alleged, due (1) to his own negligence and (2) to his contributory negligence.

The case was tried before a jury and resulted in a verdict and judgment for plaintiff.

The defendant has appealed from the judgment assigning as reasons therefor (1) that the evidence shows no actionable negligence on its part; (2) that it shows plaintiff's injuries were proximately caused by his own negligence, and (3) that the court erred in its instructions to the jury.

[60 Ariz. 357] The accident occurred July 11, 1941, at about 2:00 P.M. Plaintiff, at the time a minor 19 years of age, was on his way to work. In his complaint he charges that he was walking along said Truck Route of Highway 89, on the left side thereof in a southwesterly direction, when defendant's truck, approaching along said route from the opposite direction at a high rate of speed, drove directly towards plaintiff compelling him to flee towards the right or north side of the highway, where he was struck and run down by defendant's truck with such force that his body was thrown over the hood and his head forced through the windshield thereof.

The only eyewitnesses to the accident were the plaintiff and Ratliff, the driver of defendant's truck, and they do not agree as to the facts. According to plaintiff he was blameless, and, if the driver Ratliff is believed, he was without fault.

The physical evidence on the ground, when considered in connection with the testimony of witnesses, does not lead to any definite or satisfactory conclusion as to whose was the fault. In such circumstances, the injury being admitted, we think the liability therefor became a question for the jury under proper instructions. The trial court's action in submitting the questions of negligence and contributory negligence to the jury is convincing proof of that tribunal's conviction that the evidence of negligence on the part of defendant was sufficient to take the case to the jury.

It may be granted that plaintiff by his conduct contributed to his injury, but whether he did or not was a question for the jury. It is made so by the

Page 383

state Constitution, Article XVIII, section 5, which ...


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