BUTANE CORPORATION et al.
[Copyrighted Material Omitted]
Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Reversed and remanded.
Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., and Henry S. Stevens, all of Phoenix, for appellants.
Wm. P. Lutfy, Stockton & Karam and Emmett R. Feighner, all of Phoenix, for appellee.
La Prade, Justice. Stanford, C. J. and Udall, J., concur.
La Prade, Justice.
[66 Ariz. 276] This is an appeal from a judgment awarding damages, based upon a jury verdict, to the appellee, hereinafter referred to as plaintiff, as administratrix of the estate of Frank Wolford, deceased. Appellants, defendants below, will be designated as defendants. The deceased Frank Wolford was killed in an accident which occurred on South 19th Avenue, Phoenix, where this street crosses the Salt River, at about 6:30 p. m. on the 17th day of January, 1945. Defendant P. T. Hastings was employed as a truck driver by defendant Butane Corporation, and at the time of this accident was operating a tank truck for defendant corporation. The accident occurred at a dip in the highway, which dip is a part of the bed of Salt River. At the time of the accident it was dark and had been for a considerable time. Witness R. H. Brumback testified that he left his home at 13 South 22nd Avenue to go to his ranch which is located one-half mile south of the Baseline Road; that at the time he left his home he turned his automobile lights on and proceeded south on 19th Avenue; that when he came to the bottom of this dip he saw a Ford pickup truck (later identified as a 1931 Model A Ford pickup truck), to which was attached a small two-wheel livestock trailer, parked on the east half of the pavement in the bottom of the dip; that it was then dusk; that he was right on top of the truck and trailer before he saw them; that this situation aroused [66 Ariz. 277] his curiosity to the extent that he stopped his car, observed that there were no lights on the truck or trailer and apparently no one in attendance; and that when he returned approximately one-half hour later the accident had occurred. The Ford pickup had apparently been proceeding north on 19th Avenue. The paved portion of the highway at this point was 20 feet in width. On each side of the pavement there was a 3-foot shoulder composed of river sand and rock aggregate. The dip referred to commences at a point approximately 850 feet north of the intersection of 19th Avenue and Broadway and has a width of approximately 750 feet. In proceeding north on 19th Avenue from Broadway the road gradually declines toward the river. The south edge of the dip is 2.4 feet lower than the elevation at the intersection of Broadway and 19th Avenue (850 feet south). The accident occurred at a point approximately 480 feet north of the south edge of the dip. The elevation at the point of the accident was 8.3 feet lower than the south edge of the dip. The Butane truck weighed four tons when empty and at the time of the collision contained an uncertain amount of Butane gas. Defendant Hastings was driving west on Broadway, and, upon coming to the intersection of Broadway and 19th Avenue, he slowed down, shifted gears, and turned to the right, or north, on 19th Avenue. He proceeded north on 19th Avenue and, according to his testimony, picked up a speed of thirty to thirty-five
miles per hour. Upon reaching the edge of the dip, he observed two cars coming toward him from the north, whereupon he and the two approaching cars dimmed their lights. When he dropped off the edge of the dip, he observed an object, later identified as deceased's truck, which appeared to him like a "shadow." This same shadow or reflection was observed by the drivers of the two cars approaching from the north, Witness Gilbert stating that he saw a reflection in the sky approximately ten seconds before the collision. Witness Phy in his car was following that of Witness Gilbert. He saw a shadow in the dip as he pulled out to go around the car in front of him and then pulled back as the driver of the Butane truck flashed his lights. Both of these cars stopped about 100 feet north of the point of collision, their elevation being 4.4 feet higher than the point of collision. The Butane truck had bright lights which on direct ray gave the driver a vision of 300 to 400 feet, which vision was cut down when the lights were dimmed or deflected downward. Defendant Hastings testified that he did not slacken his speed upon entering the dip and was proceeding at approximately the same speed -- thirty to thirty-five miles per hour -- up until the time he saw the pickup and trailer, at which time he was just a few feet from it.
There were three witnesses to the accident -- Hastings, Phy, and Gilbert. Witnesses Phy and Gilbert confirmed Hastings in [66 Ariz. 278] his estimate of the speed he was traveling. Neither Phy nor Gilbert was able to recognize the shadow as that of the Ford pickup and trailer regardless of the fact that as they approached their lights were pointed toward the shadow and shining down the highway. Hastings likewise was approaching the shadow. In other words, the shadow was between their lights and the lights of Hastings. All three witnesses testified that there were no lights on the Ford pickup or trailer, and that it was completely blacked out by the darkness. Hastings testified that upon seeing the trailer he turned to the right (east) and attempted to dodge it; that his left front fender and light struck the right rear corner of the trailer, propelling the Ford and trailer north on the highway a distance of approximately 47 feet, where they ended up in a "jackknifed" position. The body of deceased was found near the front of his truck; tools were scattered along the road as though he had been working on a tire or changing a wheel. The impact severed the hydraulic brake line of the Butane truck leaving it without brakes except for the hand emergency brake. Hastings testified that he made no attempt to use the hand brake but directed all of his energies to steering his truck east of the highway and to keeping it in an upright position. His truck traveled approximately 70 feet before coming to a stop in a big pile of rubbish. Hastings testified that there was no rear tail light burning on the trailer and that he saw no red reflectors. Other witnesses testified that the trailer on the day previous to the accident was equipped with an electric tail light and two red glass reflectors. After the accident the electric tail light was intact but there was no bulb in it. The piece of wood to which the reflectors had been attached was missing and if present at the time of the accident presumably was destroyed by the accident.
The complaint among other things alleges: (1) That defendant Hastings negligently and carelessly drove the truck at a speed greater than was reasonable and prudent, having due regard for the traffic, surface, and width of the highway; (2) that the truck was driven at a speed greater than would permit its driver to exercise proper control and decrease his speed or stop to avoid colliding with the vehicle of deceased; (3) that the truck was driven and operated at a high and excessive rate of speed and in excess of 35 miles per hour; (4) that the driver did not keep any lookout for the vehicle of deceased; (5) that "after observing or after a time when by the exercise of ordinary care he should have discovered the disabled vehicle of the deceased on said highway, the driver of said truck did not exercise any care to avoid running into and against the vehicle of the deceased, or wantonly drove into and against the disabled vehicle of the deceased then on said highway"; (6) that the driver of said truck did not pass, when overtaking the disabled vehicle of the deceased, a safe distance to the left thereof; (7) that the mechanical
parts of said truck were at said time and [66 Ariz. 279] place in a state of disrepair, and the brakes on said truck were then in an unsafe condition and in disrepair, that said truck was not at said time and place equipped with adequate or any lights in operating condition, and the said truck was then and there being operated without any lights burning or lighted thereon; and (8) that at said time and place the driver of said truck was not then and there in the possession of his faculties and was an incompetent and unsafe driver and operator, all of which was known to defendant Butane Corporation.
The court over objection gave plaintiff's requested Instruction No. 4. This instruction is a rescript of sections 66-101, 66-107, and 66-135, A.C.A.1939, and includes, among other provisions, the following:
"* * * and that no person shall drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or stop as may be necessary to avoid colliding with any vehicle upon the highway, the driver of which is operating such last-named vehicle in compliance with legal requirements and with the duty of drivers and other persons using the highways to exercise due care; * *" (Emphasis supplied.)
Defendants contend that the giving of this instruction was error for the assigned reason that there was no evidence or testimony to the effect that defendant Hastings was driving at an excessive speed, nor was there any evidence which would in any manner indicate that deceased was operating his vehicle in compliance with legal requirements. It is their position that this instruction was a mere abstract proposition without explanation by the court and without any direction or instruction as to how it might or should be applied to the facts presented. The first part of the instruction states the law of this state relative to the speed of a motor vehicle, the control thereof, and the stopping thereof as may be necessary to avoid colliding with any person, vehicle, or other conveyance upon or entering the highway in compliance with legal requirements, and with the duty of drivers and other persons using the highway to exercise due care; provided that these provisions of the law are not to be construed to relieve the plaintiff in a civil action from the burden of proving negligence on the part of the defendant as the proximate cause of the accident.
Section 66-137, A.C.A.1939, provides that when a motor vehicle is stopped upon a highway during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead, "* * * there shall be displayed upon such vehicle one (1) or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred (500) feet to the front of such vehicle and projecting a red light visible under like conditions and distance to the [66 Ariz. 280] rear, except that no lights need be displayed upon any such vehicle when parked upon a highway where there is sufficient light to reveal it within a distance of two hundred (200) feet upon such highway." It is apparent that plaintiff's intestate had stopped his car on the highway after dark in violation of this section. Under art. 18, sec. 5 of the State Constitution and its many interpretations by this court, the question of whether or not plaintiff was guilty of contributory negligence is a question of both fact and law within the sole determination of the jury. Whether or not defendant Hastings was driving at a speed greater than would permit him to exercise proper control of his truck and to decrease its speed or stop the same to avoid colliding with the vehicle of deceased, considering the width of the highway and the terrain over which he was traveling, was rightfully a question of fact for the consideration of the jury. We do not feel that the quoted portion of this instruction was a mere abstract statement of law. We consider it to be applicable to the fact situation then existing.
Counsel have asked us to review our decisions concerning the interpretation of this section of the Constitution. They have suggested that the constitutional provision is not in all cases and at all times a question of fact for the jury, but is applicable
only to cases arising out of the master and servant relationship and not intended to apply in negligence cases generally. We are not disposed at this time as the court is now constituted to review our decisions in this behalf. This court since the decision in Davis v. Boggs, 1921, 22 Ariz. 497, 199 P. 116, has adhered to the rule that the question of contributory negligence is in all cases a question of fact and law for the determination of the jury. It is not improbable that ...