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Alabam Freight Lines Thevenot

Supreme Court of Arizona

March 2, 1949

ALABAM FREIGHT LINES THEVENOT

On Rehearing March 14, 1949.

Page 1051

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Page 1052

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Page 1053

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Page 1054

Appeal from Superior Court, Maricopa County; Don Udall, Judge.

Affirmed.

Kramer, Morrison, Roche & Perry, of Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens and Burr Sutter, all of Phoenix, for appellee.

Stanford, Justice.

Page 1055

Phelps and DeConcini, JJ., concurring. Udall, Justice, with whom La Prade, Chief Justice, concurs (dissenting).

OPINION

Stanford, Justice.

[68 Ariz. 261] Plaintiff (appellee) brought this action against the defendants (appellants) in the Superior Court to recover for personal injuries and property damage resulting from a collision caused by the negligence of the defendants.

Defendants admitted their liability leaving for the determination of the jury only the amount that plaintiff should recover.

The personal injuries resulted in a permanent partial disability of the plaintiff, who was then a man of the age of twenty-six years, having a wife and small daughter.

For thirty days immediately prior to the accident the net earnings of the plaintiff were $ 380. Plaintiff commenced the business of trucking in January, 1946, when he received a certificate of convenience and necessity from the Arizona Corporation Commission permitting him to engage in the trucking business.

On July 9, 1946, he was engaged in hauling cull cantaloupes from a packing shed on Grand Avenue in Maricopa County, Arizona. At about three o'clock in the afternoon he had loaded his truck with cantaloupes, and had driven out onto Grand Avenue and started toward the City of Phoenix. While on the right-hand side of the highway his truck was struck from the rear by a truck and semi-trailer of the defendant Alabam Freight Lines. The testimony shows that the truck of the defendant Alabam Freight Lines was traveling at a speed of about forty-five miles per hour at the time of the impact and that there was no slackening of speed prior to the same. Plaintiff's loaded truck was knocked some sixty feet and overturned with all four wheels in the air.

In addition to cuts and bruises all over the body of plaintiff, his left foot was badly mangled and crushed. A portion of the said foot was amputated. A second operation was required on September 3, 1946. In this operation plastic surgery was performed, skin being taken from plaintiff's thigh and grafted on to the wounded area. Some thirty areas of skin were thus transplanted. Plaintiff remained in the hospital from the date of the injury until September 25, 1946, and was continually under the care of a doctor until September 15, 1947. An artificial limb was recommended and obtained, but, because of the nature of [68 Ariz. 262] the injury, the plaintiff could not bear his weight upon the stump without causing ulcerations at the place of amputation. It will be necessary hereafter to perform another operation and amputate the remaining portion of the foot and ankle except for the flap of the heel which, if sufficient, will be pulled over the stump of the bone to provide a weight-bearing pad. If this is not possible, the entire lower leg will have to be amputated at a point approximately six inches below the knee. Under the testimony it will require from three to six months following this operation before plaintiff can again be able to work.

The case was tried before a jury and a unanimous verdict was rendered in behalf of plaintiff in the sum of $ 55,000 for personal injury and $ 1,000 for damage to plaintiff's truck. After judgment was entered on the verdict, a motion for new trial was filed by defendants which was denied by the trial court on condition, however, that the judgment be remitted to $ 46,282.96, which remittitur was led by the defendants ...


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