ROBINSON et ux.
Rehearing Denied April 24, 1951.
Judgment reversed and case remanded for new trial.
Gordon G. Aldrich, of Tucson, Darnell, Robertson & Holesapple, of Tucson, for appellants.
Fred W. Fickett, Robert A. May, and William S. Dunipace, all of Tucson, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[71 Ariz. 455] Ralph H. Lehnert, plaintiff, brought suit against Louis Robinson et ux., for damages resulting from an automobile accident. Defendants cross-complained for their own damages and alleged negligence on the part of plaintiff. At the close of the case both sides moved for a directed verdict in their favor. The trial court directed a verdict in favor of the plaintiff on the question of liability on the ground that the evidence showed that as a matter of law the defendants were "wantonly and recklessly negligent and therefore guilty of gross negligence." The court denied the motions of the defendants, and then submitted the question of damages to the jury. From these rulings and judgment the defendants brought this appeal.
The facts as brought out on the trial are as follows: Plaintiff was driving alone in a Plymouth car about 7 p.m. on January 19, 1946, in a southerly direction on North Stone Avenue in the vicinity of Luna Street near Tucson, Arizona. Luna Street runs east and west and intersects Stone Avenue at right angles. The defendants were traveling east on Luna. There were no eye witnesses to the accident except the parties hereto. Both cars had their headlights on.
Plaintiff testified he was driving approximately 30 miles per hour. He stated he slowed down to 25 miles per hour as he approached the intersection, that he looked both east and west on Luna, that he saw no other car and that is all he could remember until he regained consciousness after the accident.
Defendants testified they were driving east on Luna about 20 miles per hour. That they stopped a few feet short of the "Stop" sign on Luna at Stone Avenue. That they looked to the north and saw plaintiff's car about 300 feet away and looked to the south and saw no one coming. Defendant Louis Robinson said just time enough for him to look both ways elapsed before he entered the intersection. Defendant also said he judged plaintiff was driving about 35 to 40 miles per hour when he first saw him and in retrospect on the witness stand he said "Well, I would [71 Ariz. 456] say, the length of time it taken him to get down there, he was driving around 50 miles per hour."
The accident occurred in approximately the center of the intersection. Both cars were severely damaged and plaintiff was seriously hurt.
Appellants assign four errors of the trial court which revolve around the action directing a verdict on the question of liability in favor of plaintiff on the ground that defendants were guilty of wanton, wilful and gross negligence.
Wanton and wilful negligence is defined in Alabam Freight Lines v. Phoenix Bakery,64 Ariz. 101, 166 P.2d 816, 819, wherein we cited Restatement of the Law, Torts, Vol. II, Sec. 500, p. 106: "'The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk ...