VALLEY TRANSP. SYSTEM
REINARTZ et ux
Rehearing Denied September 20, 1948.
Appeal from Superior Court, Cochise County; Frank E. Thomas, Judge.
Judgment reversed, and cause remanded for a new trial.
Norman S. Herring, of Douglas, for appellant.
William G. Hall and Hamilton R. Catlin, both of Tucson, for appellees.
LaPrade, Justice. Stanford, C. J., and Udall, J. concur.
[67 Ariz. 381] This appeal results from a judgment in the sum of $ 8,000 for personal injuries and damages to automobile arising out of a collision of two motor vehicles. Appellants have made numerous assignments of error; we shall take cognizance of only two. Complaint is made that the judgment is excessive and that improper evidence was admitted relative to the measure of damages.
At the time of the accident (May, 1946) appellant was a certificated carrier of persons for hire. The accident and injuries were the result of a collision in which appellant's bus was driven into the rear of appellees' passenger car at a time when appellee husband was sitting at the [67 Ariz. 382] steering wheel endeavoring to start the motor. Appellees, husband and wife, and their two children testified that their car had become temporarily stalled, and that they had pushed it completely off the paved surface of the highway so that there was at least three feet between the car and the edge of the hard-surfaced pavement. Mud droppings and glass, together with skid marks, being the physical evidentiary facts of the point of contract, seemed to indicate that appellees' car or a portion of it was projecting onto the paved surface of the highway. Appellant makes much of these physical facts as indicating that the accident could not have happened as related by appellees. In any event the court instructed the jury as to the duty of the driver of a motor vehicle that has stalled to remove it from the highway. See section 66-116, A.C.A. 1939. The court also properly instructed the jury on the question of general negligence, proximate cause, and contributory negligence. Under our law statutory negligence may be negligence per se but not actionable unless it is the proximate cause of the injury, which is usually a question of fact for the jury. Davis v. Boggs, 1921, 22 Ariz. 497, 199 P. 116; Salt River Valley Water Users' Ass'n v. Green, 56 Ariz. 22, 104 P.2d 162; Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325. The asserted contributory negligence of plaintiffs was for the jury alone. Davis v. Boggs, supra.
The appellee husband sustained no permanent injuries, but as a result of the accident received some shock and back strain. The medical testimony was to the effect that plaintiff had had some arthritic spurs along the spine that had been broken loose by the jar, but it was thought that in the long run this would prove beneficial in that increased mobility of the spine would result. Plaintiff was confined to his bed for approximately two weeks; was on crutches for some time thereafter; and did not work for six months. During all of this time he testified to experiencing severe headache and backache. At the time of the accident he weighed 142 pounds; went down to 109 pounds; and at the time of the trial, a year after the accident, he weighed 125 pounds. He expended or became obligated to pay for medical service the sum of $ 429. Plaintiff testified that for some time prior to April, 1944, he had been employed in a war industry both as an electrician and machinist at wages of $ 135 per week. Over objection he was permitted to testify that after this employment he opened his own electrical shop, which he-maintained for 5 1/2 months at a net profit to himself of approximately $ 500 per month. This business he had to discontinue because he could not obtain materials. During the four months preceding the accident he had been employed at a bakery at $ 50 per week. Strenuous objection is made, and rightly so, to the evidence admitted
over objection wherein the plaintiff was permitted to relate that for four months prior to the accident he had been registered with the U. S. Employment Service, [67 Ariz. 383] and that he was "supposed to" be called up for a government job in Tennessee which would pay him "$ 1.75 per hour, plus overtime with a guarantee of $ 150 a week with expenses." At the time of the trial being a year subsequent to the accident, he had not been called to this possible (not probable, in view of the record) employment. Appellees argue that plaintiff's loss of wages was at least $ 3,200 and not $ 1,200, which would have been his earnings for the six-months' period at the bakery.
The general rule seems to be that "Compensation for the loss of time resulting from a personal injury is to be measured by the amount of money which the injured man might reasonably have earned in the same time by the pursuit of his ordinary occupation, which may be ascertained from a consideration of the wages actually lost by him or by his average earnings, or from a consideration of his general qualities and his qualifications for ...