Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Decision in accordance with opinion.
Theodore G. McKesson and Thomas P. Riordan, both of Phoenix, for appellant.
Fred V. Moore, of Phoenix, for appellee.
Stanford, Chief Justice. La Prade and Morgan, JJ., concurring.
Stanford, Chief Justice.
[65 Ariz. 118] On March 13, 1945, this court decided the case of Breedon v. White, 62 Ariz. 256, 156 P.2d 904, a suit brought in the superior court to determine the matter relating to the instant case. The case was dismissed by the trial court, but sent back by this court requiring the order of dismissal to be set aside and the case reinstated.
This case comes to us from the superior court on appeal by appellant, hereinafter called defendant, from a judgment in favor of appellee, hereinafter called plaintiff.
On April 17, 1943, at about the hour of 11 p. m., plaintiff was driving his car in a southeasterly direction upon an oil surfaced detour which had been constructed along the side of U. S. Highway 60-70, a public highway within Maricopa County, Arizona. At a point about four miles southeast of Wittman, Arizona, while plaintiff
was still upon said detour, he collided with a large pile of black-top material, which was placed across the entire width of the detour. Said detour was built for the purpose of diverting traffic from the main highway while the same was under construction by the defendant herein. The main highway had been opened for travel on the previous day, or the 16th day of April, 1943, but that fact was unknown to plaintiff. There was no barricade at the junction of the detour and the main highway, but evidence shows that there was a pole placed over a portion of the highway. Plaintiff, however, claims that the pole was not there when he went over the highway, but placed there before pictures were taken of the detour the day following the accident. There were no warning flares of any kind upon the pile of black-top material with which the plaintiff collided.
At the time of the accident there was a milk can in the back of plaintiff's car which struck him in the back at the time of the collision. Plaintiff suffered certain injuries, and his car certain damages, which are the subject of this action.
Additional facts are that plaintiff for about one and one-half years before the aforesaid accident, had been suffering from an ulcer of the stomach, but for a period of one year immediately preceding the accident the ulcer had been dormant and plaintiff had been physically able to perform all the necessary physical labor and duties connected with the operating of a mining lease, during the year preceding the accident, and during the aforesaid year was physically [65 Ariz. 119] able to follow his usual and customary occupation as a painter, but by reason of the accident he suffered a severe physical nervous shock causing the dormant ulcer to become extremely active and making the plaintiff unable to keep solid food on his stomach and otherwise made him ill and unable to follow his occupation as a miner and painter.
Defendant's first assignment of error is that the verdict of the jury was excessive and not warranted by the evidence. The second assignment was that it was plaintiff's own negligence that was the proximate cause of the accident. The third assignment includes the two foregoing assignments. The fourth assignment has reference to the court refusing to give an instruction as to the duty of persons driving an automobile to exercise ordinary care and ...