Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.
V. L. Hash, of Phoenix, for appellant.
Baker and Whitney, of Phoenix, for appellees.
Stanford, Chief Justice. LaPrade and Udall, JJ., concur.
Stanford, Chief Justice.
[65 Ariz. 188] We will style the appellant the plaintiff, the appellee, the defendant.
Defendant's bus going to Globe, Arizona, and other points east, left the bus station in Phoenix, at a time between 6:40 and 7:00 o'clock P.M., on December 24, 1941. Plaintiff was a passenger on the bus and had bought her ticket for Globe. The bus made but one stop between Phoenix and the place of accident hereinafter referred to, the stop being made at Mesa, Arizona, where plaintiff claimed the stop was for five to ten minutes. At the time of the accident, defendant claims the bus was traveling at a rate not in excess of 45 miles per hour. Plaintiff testified, however, that she believes the bus was traveling at a rate of 55 to 65 miles per hour. Testimony shows that the place where the accident occurred was a point half way between Apache Junction and Florence Junction, a distance of only 40 miles from Phoenix and the accident occurred at 8:15 P.M. Before the accident the bus driver saw approaching on the highway from the east another automobile which later proved to be an Essex. The Essex apparently had good lights and when the bus driver first observed the Essex, it was about one-half mile away. The bus driver dimmed the lights of the bus when the Essex approached, and testimony shows that the bus was being driven [65 Ariz. 189] at least three or four feet to the right of the middle line of the highway. The Essex kept on its right-hand side of the line, in which it was driving until it was within 20 or 30 feet of the bus when it swerved to the left side of the middle line and struck the bus at the left-hand front corner, or the corner next to the approaching Essex. By reason of the impact the floor boards of the bus were knocked out and the bus was caused to leave the highway, and was brought under control some 400 feet distant after striking a palo verde tree.
Plaintiff claims damages for injuries received and for medical and hospital expenses aggregating the sum of $ 6,800.
At the close of plaintiff's case, defendant moved for an instructed verdict which was granted, and from the order granting an instructed verdict, and from denial of a motion for new trial plaintiff appeals to this court.
By assignments of error plaintiff contends that the court erred in directing a verdict for defendant because plaintiff had made out a prima facie case of negligence by proving injuries to her; that plaintiff's proof established negligence by defendant and such acts became a question of fact for the jury.
Other errors assigned were: "That the court erred in denying the plaintiff the right to a trial amendment to the effect that the bus was not equipped with adequate brakes" and "That the court erred in holding that the law of the road was the law of the case as applied to the relation of passenger and carrier."
Among the cases submitted by plaintiff in support of the first group of assignments of error is Scarborough v. Urgo, 191 Cal. 341, 216 P. 584, 586. Without expressing the facts, the opinion in part reads: "In this class of cases a prima facie case of negligence is made out by proving that the passenger was injured while being carried
as such, and, this being done, the carrier is called upon to rebut or overcome a presumption of negligence that follows from the mere fact of injury, by showing, if it can, the exercise of that degree of care which will excuse it under the rule of law above stated. Such a presumption is evidence in the case, but it has no greater or different effect than the testimony of witnesses, and in no degree changes the rule as to the burden of proof, viz. the burden of producing a preponderance of evidence. * * * When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff."
From our case of Phen v. All American Bus Lines,56 Ariz. 567, 110 P.2d 227, 228, a case which was cited by plaintiff and quoted by defendant, we quote: "The appeal is predicated upon the theory that the rule of res ipsa loquitur applied and that such being the case the question of whether defendant was negligent was for the jury and not for the court. There is probably as much confusion over the meaning, [65 Ariz. 190] applicability and effect of this rule as over any other principle of law. We think the general rule may be illustrated thus: A is injured as a result of an accident and brings suit against B, alleging the latter to have negligently caused the accident. If the ordinary reasonable man, knowing merely the physical facts and circumstances surrounding the accident, but not the cause thereof, would say to himself that under the common experience of mankind the accident would not have happened if defendant had not been negligent, the law applies the rule of res ipsa loquitur and the jury is permitted to infer from these circumstances, if it so desires, that the negligence of defendant was the cause of the accident. The application of this rule, however, is limited by certain things: (a) The apparatus or thing causing the accident must be such that under ordinary circumstances no injurious operation would be expected unless from the careless construction, inspecttion or user thereof; (b) both the inspection and the user of the apparatus must have been at the time of the injury in the control of the party charged with negligence; and (c) the injurious occurrence must have happened regardless of any voluntary action at the time by the party injured. If nothing further appears, it is a case for the application of the rule. If, however, there are two concurring causes of the accident, one of which is under ...