NICHOLS et al.
CITY OF PHOENIX et al
Appeal from Superior Court, Maricopa County; C. C. Faires, Judge.
Consolidated actions by Nancy W. Nichols and husband and by Mat Latimer against the City of Phoenix, Guy Sheldon and another for injuries sustained by named plaintiffs in a collision between a city bus, on which such plaintiffs were passengers, and an automobile. Judgment for named defendants, and plaintiffs appeal.
Reversed and remanded for new trial.
V. L. Hash, of Phoenix, for appellants.
Jennings, Strouss, Salmon & Trask, of Phoenix, for appellees.
Udall, Justice. LaPrade, C. J., and Stanford, Phelps, and Deconcini, JJ., concur.
[68 Ariz. 128] Separate actions were brought by Nancy W. Nichols (joined by her husband) and Max Latimer against the City of Phoenix and Guy Sheldon, its bus driver employee. The two actions were consolidated and tried before a jury. At the close of all of the evidence the trial court granted a motion for an instructed verdict interposed by these defendants, and judgment was thereupon entered in their favor that the plaintiffs take nothing. Upon denial of their motion for a new trial, the plaintiffs (appellants) have brought the matter before us for review. Both appeals are presented on the same set of briefs. We shall refer to the parties as they were designated in the lower court.
The plaintiffs were paid passengers on an early-morning westbound bus being operated by the City of Phoenix between the city and Luke Field, some 23 miles distant, where plaintiffs were employed as government workers. Both plaintiffs were injured, seriously enough to be hospitalized, when the bus, then traveling over a main thoroughfare known as Maricopa Road, was struck by a Ford coupe driven by one Tom Gilliland at the intersection of Maricopa Road and Lateral 17. While Gilliland was finally made a party defendant, he was not served nor did he make an appearance at the trial. The bus, when nearly through the intersection, was struck over the right rear wheel, the impact causing the bus to skid some 15 feet, then careen out of control some 75 feet before coming to a stop off the paved portion of the highway. Maricopa Road, for many miles both east and west of its intersection with Lateral 17, was designated and marked as a through highway or boulevard, and plaintiffs admit that such was its favored status. The evidence
introduced by plaintiffs, as well as that offered by the defendants, showed that Gilliland failed to stop or even slack his speed before entering the boulevard, that he entered the intersection while driving at a speed estimated by various witnesses to be from 50 to 65 miles per hour, and crashed into the right rear side of the city bus. The evidence stands uncontradicted that Gilliland told the highway patrolman who investigated the accident that the road was new to him, that he did not know there was a stop sign there, and that he was in a hurry to get to work and [68 Ariz. 129] "ran" through the stop sign. He also told the bus driver that his brakes did not work when he started to apply them. The evidence is uncontradicted that the stop sign at this intersection was plainly visible, the view thereof being unobstructed.
The plaintiffs charged the defendants with both general and specific acts of negligence, particularly the operation of the bus at an excessive rate of speed, and failure to keep a proper lookout for approaching cars at this intersection.
In ruling upon the defendant's motion for a directed verdict at the close of all the evidence in the case, the learned trial court took the view that even assuming a conflict in the evidence as to defendant's negligence, still the primary proximate cause of the accident was the wrongful act of Gilliland in "running" the stop sign, and that the court could declare as a matter of law that this act was the sole proximate cause of the collision and of the resulting injury to plaintiffs. The basic assignment of error urged on this appeal is that the trial court erred in directing a verdict for defendants at the close of the whole case for the reason that plaintiffs' proof established acts of negligence on the part of the defendants and that such negligence, as well as the matter of proximate cause, became a question of fact for the determination of the jury. A motion of this kind is regarded as admitting the truth of whatever competent evidence the opposing party had introduced including the reasonable inferences to be drawn therefrom, and it is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set it aside, that the court is justified in directing a verdict. Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881; Dieterle v. Yellow Cab. Co., 34 Cal.App.2d 97, 93 P.2d 171.
Ordinarily an appellate court in determining an appeal views the evidence, where it is conflicting, in the light most favorable to a sustaining of the lower court's judgment. City of Bisbee v. Cochise County, 50 Ariz. 360, 72 P.2d 439. A reverse rule however applies where, as here the trial court directs the jury to return a verdict for the defendants. The conflicting evidence then must be viewed in a light most favorable to plaintiff. Cope v. Southern Pac. Co., 66 Ariz. 197, 185 P.2d 772; Dieterle v. Yellow Cab. Co., supra. In our recitation of the facts we shall state them in this light.
The plaintiffs have, apparently for good measure, injected in their briefs the matter of a breach of contractual relationship, but an examination of the complaints convinces us that the gravamen of these actions clearly rests in tort. We quote from 1 C.J.S., Actions, § 49e(5):
"* * * but if it appears from the complaint that the gist of the action is a [68 Ariz. 130] breach of public duty, the action is construed as in tort, and its character as such is not affected or changed by the fact that the complaint alleges a contract of transportation, the purchase of a ticket or the payment of fare, the action certainly being ex delicto if no contract is specifically pleaded." In determining the appeal we shall therefore treat the cases as tort actions and ignore the arguments advanced by plaintiffs as to the contractual liability of the city.
The plaintiffs are entitled to rely upon the well settled law that the City of Phoenix, acting in its proprietary capacity as a common carrier of passengers for hire, is bound to exercise the highest degree of care practicable under the circumstances. Southern Pac. Co. v. Hogan, 13 Ariz. 34, 108 P. 240, 29 L.R.A.,N.S., 813;
Atchison, Topeka, & S. F. Ry. Co. v. France, 54 Ariz. 140, 94 P.2d 434; 10 Am.Jur., Carriers, section 1245; Lewis v. Pacific Greyhound Lines, 147 Or. 588, 34 P.2d 616, 96 A.L.R. 718, with annotation beginning at page 727. However the carrier is not an insurer of the safety of passengers. Alexander v. Pacific Greyhound Lines, 65 Ariz. 187, 177 P.2d 229; 37 Am.Jur., Motor Transportation, section 594.
The plaintiffs charge the defendants with a violation of two separate statutory speed regulations, the first being section 66-101(c), A.C.A.1939, which reads in part:
"* * * Provided, however, that no person operating a vehicle for the transportation of passengers for compensation shall operate such vehicle at a speed in excess of forty-five (45) miles per hour." Then, by trial amendment, plaintiffs changed from a charge of an alleged violation of the fifteen miles per hour statute set forth under subsection (a) of section 66-101, supra, to the charge of a violation of the following provision set forth in subdivision (b) of this section:
"(b) Twenty (20) miles per hour: * * * 2. upon approaching within fifty (50) feet and in traversing an intersection of highways where the driver's view in either direction along any intersecting highway within a distance of two hundred (200) feet is obstructed, except that when traveling upon a through street or at traffic controlled intersections the district speed shall apply." (Emphasis supplied.)
This latter special provision is a limitation upon the general speed laws covered by section 66-101, supra, (whether it be the reasonable and prudent speed at which automobiles generally may be driven, or the forty-five mile speed limit fixed for common carriers). In our opinion the twenty mile provision has no application in the instant situation for the reason that defendants were operating upon a through or arterial highway, and plaintiffs, upon whom rested the burden, have failed to show that any special district speed was [68 Ariz. 131] then in effect on Maricopa Road. In the absence of a special district speed, the general law as to speed applies.
The accident in question occurred at approximately 6:25 A. M. on February 1, 1945. It was just breaking day and both the Ford car driven by Gilliland and the city bus driven by defendant Sheldon were using lights which made their movements more clearly visible. Plaintiffs placed reliance, in part, upon testimony presented showing that it was plainly visible to the occupants of the bus, including its driver, that the Ford car going south on Lateral 17 was for more than a half mile back of the point of intersection with Maricopa Road traveling at a high rate of speed. They contend that this was a warning to the bus driver that the Ford car might not stop at the intersection and that hence his failure to so control and slow his bus down in time to avoid a possible collision constituted negligence and breach of the duty demanded of common carriers by the law to exercise the highest degree of care in protecting their ...