Appeal from Superior Court, Maricopa County; W. E. Ferguson, Judge.
Suit by Jack H. Casey against V. R. Marshall and Mary Doe Marshall, husband and wife, to recover for personal injuries and damages resulting from collision between plaintiff's and defendants' automobiles, wherein defendants filed a counterclaim for damages to their automobile. From a judgment in favor of defendants on the complaint, the plaintiff appeals.
Judgment reversed and cause remanded with directions to grant a new trial.
Hill, Robert & Hill, of Phoenix, for appellant.
Gust, Rosenfeld, Divelbess & Robinette, of Phoenix, for appellees.
Morgan, Judge. La Prade, concurring. Stanford, Chief Justice (dissenting).
[64 Ariz. 234] Plaintiff brought suit against defendants for recovery of damages growing out of an automobile collision at the intersection of East Roosevelt and North Seventh Streets, Phoenix, at about the hour of 2 o'clock in the morning, on May 22, 1944. The facts were:
Plaintiff was driving his car in a westerly direction. Defendant's automobile, being operated by their seventeen year old son, was proceeding southerly on Seventh Street. The intersection controls -- flashing signals -- consisted of yellow flashes for north and south traffic on Seventh Street, and red flashes for Roosevelt east and west traffic. The Phoenix city ordinances require drivers of vehicles to stop before entering the intersection, where the flashing signal is red, and where the flashes are yellow to proceed into the intersection "only with caution and in safety." Plaintiff made a momentary or hesitant stop at the intersection and proceeded to cross, driving between seven and ten miles an hour. He nor none of those in his automobile saw defendants' approaching car, which was being driven at a speed of between 25 and 45 miles per hour. Nor did the driver of that car see plaintiff's car until the moment of collision.
The collision occurred in the northwest segment of the intersection, west of the center line of Seventh Street, and 10 to 15 feet from the northwest corner. From the point at which plaintiff had entered the intersection, he had driven 30 feet. The evidence indicates that at the time plaintiff made hesitant stop and entered the intersection, defendants' car was about the middle of the block north of Roosevelt. Both cars had lights. The intersection was lighted. The view of the intersection and its approaches was unobstructed. The driver of defendants' car did not apply his brakes and, after the collision, was unable to do
so because of broken connections. Defendants' car struck the center of plaintiff's car on the right-hand side. The north line of Roosevelt Street, west of the intersection, is a few feet south of the same line east of the intersection. Plaintiff's car was turned slightly to the left when the impact occurred. Both cars drove about 50 feet south on Seventh Street before coming to a stop. Severe injuries were suffered by plaintiff, and both automobiles were damaged.
Plaintiff alleged negligence on the part of the driver of defendants' car, which was denied by defendants, who set up the defense for contributory negligence. Counterclaim for damages to defendants' car was made. The cause was tried before a jury which found verdicts against defendants on their counterclaim, and against plaintiff on his complaint. Judgment being entered, and plaintiff's motion for new trial having been denied, appeal was taken by him to this court.
The only claim of error made is upon the failure of the trial court to give the following [64 Ariz. 235] offered instruction upon the doctrine of last clear chance: "The jury are instructed that, if you find that the plaintiff had negligently placed himself in a perilous situation, and that the driver of the defendants' automobile, by the exercise of reasonable care, could have seen and should have seen the perilous situation of the plaintiff in time to have avoided injuring him, by the exercise of reasonable care on the part of the driver of the automobile, then such negligence on the part of the plaintiff will not defeat his right to recover, if the negligence of the plaintiff had terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him."
Plaintiff supports his claim that this instruction should have been given by two propositions. First, in determining whether the instruction was justified, the evidence taken in support of plaintiff's theory must be considered in its most favorable light to that end. Second, where there is any reasonable theory ...