Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.
Reversed and remanded, with instructions.
Theodore G. McKesson and Thomas P. Riordan, both of Phoenix, for appellant.
Snell, Strouss & Wilmer, of Phoenix, for appellee.
LaPrade, Judge. Stanford, C. J., and Morgan, J., concur.
[64 Ariz. 103] Plaintiff-appellant instituted this action in the court below for recovery of damages to its truck in a collision with defendant-appellee's truck. The facts are conceded to be: On August 20, 1943, at about 3 o'clock in the morning, plaintiff's truck with trailer was being driven in a westerly direction over and on the right-hand portion of Highway 70, at a point approximately 30 miles west of Safford where the road, on its westerly course, ascends to and passes through a cut on a hill crest with a left-hand curve. At the same time, defendant's truck with semi-trailer was being driven in an easterly direction along the highway, immediately following another truck and trailer being driven upgrade to the crest of the hill above mentioned. On its easterly course the highway ascends this hill on a moderate grade with a right-hand curve through the cut. A high embankment borders the highway on the north side. A solid or nonpassing white line was painted down the middle of the road from a point considerably west of the hill and over its summit. Defendant's truck driver turned his truck over this white line and attempted to pass the preceding truck on the left. His view of the road was obscured by the curve and the truck which he was attempting to pass. The driver of plaintiff's truck, as he approached the crest of the hill, was proceeding on his proper side of the road in a westerly direction at a speed of 30 to 35 miles per hour, and as he came through the cut at the hill crest he saw defendant's truck in front of him on the northerly side (wrong side) of the road just over the summit, at a distance of not more than 60 feet. The driver of the eastbound truck, which defendant's truck was attempting to pass, upon seeing plaintiff's westbound truck, pulled as far to the south as possible. The driver of defendant's truck slowed down to drop back to the rear of the preceding eastbound truck but was unable to do so before [64 Ariz. 104] the collision. The driver of plaintiff's truck fully applied his brakes and turned off the road to the right as far as the embankment would allow, but was unable to stop before the trucks collided. At the rate of speed he was traveling, the driver's testimony indicated he could not stop the truck within the range of his vision. The collision between the two trucks occurred well over on the north side of the highway (plaintiff's side), the front wheels of defendant's truck being seven feet northerly of the center line of the road, and the cab portion of plaintiff's truck resting on the north embankment and over a portion of defendant's truck. Both trucks were damaged. Quickly stated, the bald facts are: Each party was driving a big truck with trailer attached approaching the crest of the hill from opposite directions on an S-curve through a cut. When the plaintiff reached the crest and started over the hill on his own side of the road, there the defendant was, in front of him on the wrong side of the road, attempting to pass a slow-moving truck and trailer in front of him, and in a position from which he could not extricate himself. The highway was completely occupied -- plaintiff pulled to his right as far as he could and ran his truck into the side of the cut, but still could not avoid running into defendant's equipment. The situation was graphically put in the words of the driver of the truck that the defendant was attempting to pass. His testimony is as follows:
"Q. * * * What was the furthest point that the Holsum truck (defendant's truck) reached in passing, that is, was it even with the nose of your equipment, the head of your radiator? A. No.
"Q. How far did it get in passing you? A. He was up to the front section of my semi. In other words, the trailer, his radiator was even with some portion of the front section of that trailer. I don't remember just exactly where it was.
"Q. Was the nose -- I believe he has an International, was it? A. That is right.
* * *
Q. Was the nose of that equipment, that is, the bumper and the radiator even with your cab? A. Not quite.
"Q. It never quite got there. Then when you saw that there was going to be a collision you pulled off as far as you could, is that right? A. That is right.
"Q. And the driver of the Phoenix equipment (defendant's equipment) checked his speed and dropped back some? A. He tried to drop back, yes. He dropped back nearly the length of my semi.
"Q. How were you able to watch that? A. All I had to do was look in the rear-view mirror and watch it. I could see both of them at the same time. The rear-view mirror makes the spot on the other truck coming down the hill, and naturally I was praying that something would happen to take something out of there because there wasn't room in that cut for three rigs.
[64 Ariz. 105] "Q. It was too narrow? A. Oh, yes. I had done all I could when I seen he was dropping back, and I could not pick any more speed. I had the motor wound up then and pulled to the right as far as I could. That was all I could do. The rest of it was just to stay there and watch it.
"Q. As I understood it, the impact occurred approximately where with respect to your cab? A. Well, in the vicinity of my axles of my trailer wheels.
"Q. Your front axles? A. Back.
"Q. Back. In other words, he had dropped back to about the tail end of your truck? A. That is right." (Emphasis supplied.)
At the close of plaintiff's case, defendant moved for judgment upon the ground that plaintiff's evidence disclosed contributory negligence, and there could be no recovery. This motion was predicated on defendant's statement that it would not offer any evidence with ...