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City of Phoenix v. Khan

Supreme Court of Arizona

April 16, 1951

CITY OF PHOENIX et al.
v.
MUBAREK ALI KHAN

Reversed and remanded for new trial.

B. Jack Choisser, City Atty., Jennings, Strouss, Salmon & Trask, and Rex H. Moore, all of Phoenix, for appellants.

Brown & Langerman, Phoenix, for appellee.

Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.

OPINION

Phelps, Justice.

Page 950

[72 Ariz. 3] This is an appeal from a judgment of the superior court of Maricopa County in favor of plaintiff-appellee and against defendants-appellants, from an order denying defendants' motion for judgment notwithstanding the verdict and from an order denying defendants' motion for a new trial. The parties will hereinafter be referred to as plaintiff and defendants.

The facts are that on October 31, 1948, at about 6:15 p. m. plaintiff boarded a westbound bus at 15th Avenue and West Van Buren Street operated by defendant City of Phoenix and driven by defendant C. J. Clark. The bus was loaded to the extent that a number of passengers, including plaintiff, were compelled to stand in the aisle. After plaintiff paid his fare he took a position in the aisle immediately back of the driver holding on to an upright metal bar with his right hand.

West Van Buren Street is a four-lane highway until it reaches 23rd Avenue. At that point the paved portion of the road is narrowed to a three-lane pavement which constitutes the traveled portion of the road. As the bus approached 23rd Avenue [72 Ariz. 4] it was traveling on the lane just north of the center of the road and by going approximately straight ahead would travel upon the north lane of the three-lane pavement west of 23rd Avenue. Just as the bus crossed 23rd Avenue the driver observed that a car which had been traveling west on the north lane of the four-lane highway ran on to the unpaved portion of the road which just west of 23rd Avenue was full of holes. Upon observing the situation the bus immediately pulled over to the center or passing lane of traffic so that the car to his right could get on the north lane of traffic which it did. The car proceeded along the north lane 20 to 30 feet ahead of the bus as it continued on the center or passing lane. Ahead of the car to whom the bus driver had surrendered the right to the north lane there was another car also using the north lane.

24th Avenue runs south from Van Buren Street but does not extend north thereof. As the bus and the two cars on the north traffic lane approached 24th Avenue and West Van Buren Street the driver of the bus saw the leading car on the north lane suddenly and without warning turn on to

Page 951

the center lane of traffic and stop at a point where 24th Avenue intersects on the south with West Van Buren Street. When stopped this car was headed in a southwesterly direction completely blocking the center lane and a portion of the north lane. It was evident that the driver of the car intended to go south on 24th Avenue. The bus was 80 to 90 feet back of the car when he saw the driver turn over on to the center lane of traffic and stop. The bus driver testified that eastbound traffic was heavy but it appeared to him that the car would be able to cross over on to South 24th Avenue without interference from the approaching eastbound traffic. It developed, however, that the driver of the car did not undertake to immediately cross to 24th Avenue.

The bus driver further testified that as soon as he saw the car pull over on to his lane of traffic he took his foot off of the accelerator and began to fill the brakelines with air; that, at this time, he was traveling not over 25 nor less than 20 miles per hour; that he traveled 25 to 30 feet which he was filling the brakelines with air and drove 10 to 12 feet after the brakelines were filled before he actually applied the brakes; that he brought the bus to a stop 3 or 4 feet back of the car blocking his lane of traffic and that he probably swerved slightly to the left in bringing the bus to a stop because of the closeness of the second car in the north lane of traffic. The ...


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