Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Struckmeyer & Struckmeyer, of Phoenix, for appellant.
George T. Wilson, of Phoenix, for appellee.
LaPrade, Judge. Stanford, C. J., and Morgan, J., concur.
[64 Ariz. 314] This is an appeal from a judgment awarding damages to the appellee (plaintiff below) against appellant, growing out of a motor vehicle accident. Each of the parties was operating large trucks towing trailers. Appellee's truck weighed, unladen, 20,950 pounds; the trailer, 9,560 pounds, making a combined unladen weight of 30,510 pounds. Both the truck and trailer were equipped with six wheels. Defendant's equipment was a semi-trailer tank truck. The speed of both trucks at the time of the accident was approximately 35 miles per hour. Both parties were guilty of driving in excess of the speed limit. [64 Ariz. 315] Sec. 66-103, A.C.A.1939, prior to its amendment in 1945, limited the speed of a motor truck towing a trailer or semi-trailer to 20 miles per hour.
The accident occurred on a bridge about a mile and a half from Paulden, Arizona, on Highway 89 (Prescott-Ashfork highway). Appellant's equipment was going north, and that of appellee south. The bridge was approximately 100 feet in length and 20 feet in width. On each side of the bridge there was a solid concrete wall (guard rail) approximately three feet in height, extending the entire length of the bridge. The surface portion of the highway leading into each end of the bridge was considerably wider than 20 feet. Appellant's driver, through defective lights, or inattention, or both, did not observe that the roadway narrowed to a width of 20 feet where it entered upon the bridge, and apparently neglected to guide his truck to the right center of the roadway at that point, to avoid the side wall of the bridge. The result was that appellant's truck drove straight into the side wall. At this moment appellee's truck had practically traversed the bridge and was approximately twenty feet from emerging off the bridge. The impact of appellant's truck on the side wall of the bridge caused it to jackknife across the roadway directly in the path of appellee's oncoming truck. Appellant's truck completely closed the aperture or entrance (exit for plaintiff) to the bridge, and so to speak, effectively corked the bottle and calked the seams. Plaintiff's driver didn't have time to think "Jack Robinson," much less say the words, before the collision.
Over objection of the defendant, the court admitted evidence of an admission by the driver of the defendant to the effect that "it was all his fault." The conversation took place after both tracks had come to a full stop, flares had been put up, and more than 15 minutes after the collision. The case was tried to the court without a jury. The court found that the sole and proximate cause of the accident was the carelessness and negligence of the defendant. The court, in its findings, found that plaintiff had suffered damages as follows: Towing charges, $ 149; unloading and reloading his freight, $ 20; that the repairs to his equipment would necessitate an expenditure of $ 2,570.73; that by reason of said accident, plaintiff's said truck was rendered useless to plaintiff and non-serviceable in plaintiff's business for a period of forty-one days, and that the reasonable value of the use of said truck for said period was the sum of $ 20 per day, making a further loss to plaintiff of $ 820; that the value of said truck immediately prior to said accident was not less than $ 10,000; that the value of said truck immediately after said accident in its damaged condition was not more than $ 6,500; that its value after repairs was not more than $ 9,000; and that plaintiff had been damaged in a sum of not less than $ 3,500.
[64 Ariz. 316] The court concluded that the proximate cause of the said accident and the damage to plaintiff's truck was the said carelessness and negligence of defendant in the operation of his said truck and that any negligence of plaintiff, as a matter of law or otherwise, did not contribute to said accident or the resulting damage to plaintiff's truck and trailer. The judgment was for $ 3,500, without any segregation as to the items taken into consideration in arriving at said sum.
A brief synopsis of the assignments of error are (1) that the uncontradicted evidence shows that the injury was proximately caused or contributed to by the illegal conduct of the plaintiff in operating its vehicle having a total weight in excess of 34,000 pounds upon the highway, in express prohibition of law, and at a speed especially prohibited by law; (2) that the evidence does not support a finding that the sole and proximate cause of the accident was the carelessness and negligence of the defendant; (3) that the court erred in admitting the purported declaration of the defendant driver, "it is my fault," for the reason that said conversation was a narrative of the past event, and not a part of the res gestae; and (4) that the court erred in its findings in allowing the reasonable value for the use of a truck of $ 20 per day, and allowing damages in the sum of $ 820 for its rental value, for the reason that the evidence did not show any loss actually sustained by plaintiff in the securing or renting of another truck.
The legal propositions relied upon in support of the assignments are (1) plaintiff's truck having a total weight in excess of 34,000 pounds, was prohibited by law from being operated upon the highway, and was therefore a trespasser, and could not maintain an action except for wanton negligence; (2) that to drive at a speed in excess of that prescribed by law is negligence per se; (3) statements of an agent to be admissible against the principal, must be part of the res gestae; (4) reasonable ...