MURPHY et ux.
Lewkowitz & Wein, of Phoenix, for appellants.
Kramer, Morrison, Roche & Perry, of Phoenix, for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[70 Ariz. 251] Plaintiff and wife Francis M. Murphy and Carrie A. Murphy, respectively, brought separate actions against James A. Thompson, defendant, which actions were consolidated for trial. The actions were for physical and property damages sustained as a result
of an automobile accident on May 9, 1948 at 8 p. m. on South Central Avenue, Phoenix, Arizona. From a judgment in favor of defendant plaintiffs appeal.
The accident occurred in this manner. Defendant was driving southerly on Central Avenue in his 1942 Ford truck with a 25 foot semi-trailer attached. He passed a car on the left going in the same direction and in doing so crossed the white center line. At the time he passed that car he could see plaintiffs' car, a 1936 Pontiac, coming in the opposite direction about 300 yards ahead. Both parties had their lights on. Defendant's lights were on low beam, known a "dimmers". Defendant's truck and trailer also had clearance lights on both sides. After defendant passed the car going in his direction he endeavored to get his car and trailer on his own side of the white center line and did so with the exception of the left rear wheels of the trailer, which extended over approximately 18 inches. The plaintiff going north in the opposite direction saw the defendant coming but did not turn away from the center line which he could have easily done because there was no other traffic in his way. The pavement in that area was 34 feet wide. The collision occurred by plaintiff striking the rear left wheels of the trailer with the front of his car. Plaintiffs' car careened over to the west line of the road where it came to rest. Defendant's truck stopped on the west side of the road about 150 feet from the point of impact. Plaintiffs' car was wrecked and both plaintiffs injured, Mrs. Murphy seriously so
Counsel for both sides agreed on the instructions to the jury which included instructions on proximate cause and contributory negligence. When both sides had rested, the judge gave his usual and the theretofore agreed upon instructions and also the following additional instruction: "You are instructed that any person under the influence of intoxicating liquor who shall drive any vehicle upon any highway within this state commits a violation of law. It is a question for the jury to determine whether a driver of an automobile was under the influence of intoxicating liquor [70 Ariz. 252] to the extent that he did not have the clearness of intellect or control of himself that he otherwise would have had. If you find by the preponderance of the evidence that the plaintiff Francis M. Murphy violated this law and that such violation was the proximate cause of the accident complained of herein or contributed thereto, you will find for the defendant."
Plaintiffs appeal on nine assignments of error directed against that instruction and the lower court's refusal to grant a new trial. The assignments of error and the propositions of law may be reduced to the following: (a) the alleged contributory negligence did not include the driving of the car while under the influence of intoxicating beverages; (b) the evidence does not support the instruction; (c) the plaintiff was taken by surprise; (d) the court erred by not granting plaintiffs' motion for a new trial which was supported by affidavits of newly discovered evidence.
We will endeavor to answer the above four complaints in the order listed.
First, it is a well-established rule in this jurisdiction that a party declaring on general negligence (in this case defendant alleged contributory negligence) is not limited to specific acts of ...