J. R. WOMACK and CLIFFORD GIDEON, Appellants,
EDWARD J. PREACH, Appellee
See Supplemental Opinion, 64 Ariz. , 165 P.2d 657.
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.
Messrs. Stockton & Karam, for Appellants.
Mr. Kenneth S. Scoville and Mr. Lynn M. Laney, for Appellee.
Stanford, C. J. LaPrade and Morgan, JJ., concur.
Stanford, C. J.
[63 Ariz. 391] In this opinion we will designate the appellee the plaintiff, and the appellants the defendants as they were in the trial court.
The accident hereinafter described occurred on North Seventh Street between Roosevelt and Garfield Streets in the City of Phoenix, Seventh Street running north and south and the other two streets running east and west. There were traffic control lights at Roosevelt Street but none at Garfield Street.
During the noon hour on the 1st day of June, 1943, the mother of Howard Joseph Preach, Jr., who resided at 608 East Garfield Street with her husband and two other children, directed her son, Edward Joseph, who was four and one-half years old, to go to a pay-n-takit store on the east side of Seventh Street located between Roosevelt and Garfield Streets, and purchase a loaf of bread. Defendant Gideon, at about 12:30 o'clock on said date, was proceeding south on North Seventh Street with a truck belonging to defendant Womack. The truck was loaded with gravel and rubbish. Gideon stopped for the light signals at Roosevelt Street. When it was his time to proceed, he crossed Roosevelt Street and continued south at a speed of approximately fifteen miles per hour. The block between Roosevelt and Garfield Streets had many cars parked on both sides. The Preach boy did not go to the light signals on Roosevelt Street to cross Seventh Street, nor did he go to the crossing at Garfield Street, but went north on Seventh Street until he was opposite the pay-n-takit store and [63 Ariz. 392] then attempted to cross Seventh Street. The driver of the truck apparently saw the boy crossing the street and swerved his truck to the east in an effort to avoid the boy, but was not successful and the boy was killed at a time when the truck was somewhere about the center of the road.
Plaintiff brought his action for damages against the defendants in the superior court for the death of the child. A jury returned a verdict for $ 5,000, and from that verdict,
and the judgment following, defendants appeal.
Defendants, who have appealed herein, charged that the parents of the child were careless and negligent in sending him upon the street and the damage sustained was the direct and proximate result of such negligence and carelessness, and the same contributed to and helped to cause the death of the child.
Plaintiff maintains that the truck driven by defendant Gideon was not equipped with proper and sufficient brakes so that it could be kept under control; that the brakes were applied some thirty feet north of the place where the child was run over as shown by marks upon the pavement, and that the defendants wantonly, carelessly and negligently drove the truck injuring and killing said child.
The testimony shows that witness A. L. Miller, for defendant, who was sitting in his car parked diagonally in front of the pay-n-takit store, happened to be looking across the street at the time of the accident. To Mr. Miller the child appeared to be starting across to his side of the street at the same time he saw the truck. The child and the truck appeared to the vision of Mr. Miller about the same time and the best we can understand the testimony is that each was about fifteen feet from the point of impact; that the child started across the street where there were no signals, somewhat near the middle of the block, and commenced to run [63 Ariz. 393] across from the rear of cars parked in front of a cleaning establishment. He also testified that the truck was swerving and the boy was inclining to the south, and that the truck swerved to the east of the center line of the street at the time of the impact.
Clifford Gideon, one of the defendants who also was the driver of the truck, testified that he had reported to the repair foreman of the other defendant, Mr. Womack, the fact that the brakes on the truck needed attention. He testified, however, that when he was ...