MOTORS INS. CORP.
RHOTON et ux
Reversed and remanded with instructions.
Theodore G. McKesson and James D. McKesson, of Phoenix, for appellant.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, and Robert C. Kelso, of Springerville, for appellees.
La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concur.
La Prade, Justice.
[72 Ariz. 417] This is an appeal from a money judgment on a verdict in favor of the appellees (defendants and counterclaimants below), and from the judgment denying the claim for damages on appellant's complaint. The appellant (plaintiff and counter-defendant below) instituted the action claiming money damages for injury to its automobile alleged to have been occasioned by the gross and wanton negligence of counterclaimants. The factual situation out of which the action arose is as follows:
Appellant's car was driven by its agent named Webb who on the 31st day of December, 1947 was proceeding in an easterly direction on the main highway numbered U.S. 60-70 between the towns of Superior and Miami, Arizona. The scene of the accident was at a place called Williams Camp. Shortly before the accident, a Mrs. Clark was proceeding east on this highway. Due to the fact that the road in places was covered with snow and ice Mrs. Clark pulled off the paved surface of the highway and stopped her car practically adjacent and parallel thereto. She testified that due to the condition of the road she was afraid to proceed into a right-hand curve which was some 50 feet in front of her, and that she had intended to make inquiry as to the condition of the road ahead. She had been stopped only a few moments and while still
sitting in her car saw the car of Mr. Webb coming from behind her and over a slight rise in the road some 100 feet behind her. Due to the slippery condition of the road (ice-coated) after passing over the rise, Mr. Webb's car began to skid and he was not able to bring it to a stop until he had contacted the right rear fender of the Clark car with his left front fender. His car barely came in contact with and made a small dent in the fender of her car. After [72 Ariz. 418] the cars came together, each of the parties alighted on the pavement and walked between the cars. The bumpers of the cars were then approximately a foot apart. Mr. Webb's car at this time was pointed in a southeasterly direction with the front wheels and the right rear wheel off the paved portion of the highway. His left rear wheel was approximately 2 1/2 feet from the edge of the pavement, leaving his left rear fender protruding into the highway a distance of 3 to 4 feet. The paved portion of the highway at this spot was 20 feet in width. After passing between the cars, Mr. Webb and Mrs. Clark proceeded to stand off the highway to the south of their cars and at the time were exchanging introductions and observing what, if anything, had happened to the cars due to their having bumped together. It was at this time that the counterclaimants' car approached from their rear and smashed into the rear of the Webb car. Neither Mr. Webb nor Mrs. Clark saw or heard the approaching car. The force of the collision drove the front end of the Webb car into the rear end of the Clark car smashing and denting in the fender, trunk and bumper. Neither of the parties (Webb and Clark) knew what hit them but they found themselves on the ground and knocked several feet farther away from their cars. One of Mrs. Clark's shoes was thrown a distance of 50 feet. The Rhoton car (counterclaimants) skidded across the highway in a northeasterly direction, traveled 147 feet over a pile of limbs and debris and through an arroyo and up against a steep embankment, the top of which was some 8 or 10 feet above the bottom of the arroyo. When the Rhoton car came to rest, its front end was upon the bank with its rear end in the arroyo. The damage to the Rhoton car was so extensive it cost $ 425.37 to have it repaired. The damage to the Webb car was in the sum of $ 507.81.
Some nine months after the accident, plaintiff below filed its action for damages for injuries to its car, alleging gross and wanton negligence. Defendants filed an answer and counterclaim on November 1, 1948. By their answer they denied the allegations of negligence and as an affirmative defense alleged that the accident described in the complaint was caused by or contributed to by the careless and negligent conduct of plaintiff's agent in leaving a portion of the automobile parked on the paved portion of the highway. The defendant Lucy Rhoton claimed damages in the sum of $ 10,000 on account of personal injuries alleged to have been received by her. On February 11, 1949, being 13 months and 11 days after the accident and 3 months and 11 days after the defendants had filed their counterclaim for damages for the wife, they filed an amended counterclaim again setting up the negligence of agent Webb in leaving the car parked as he did, increased the claim of Lucy Rhoton from [72 Ariz. 419] $ 10,000 to $ 15,000, included a demand by Mr. Rhoton for $ 3,500 for personal injuries and $ 800 for loss of wages.
Photographs in evidence conclusively demonstrate the following physical facts: That the Webb and Clark cars at the time they were parked could have been seen from a distance of more than 400 feet by Mr. Rhoton as he approached; that the highway in this particular area was straight; that at the time that Mr. Rhoton was approximately 400 feet away from the Webb and Clark cars he was traveling slightly uphill; that the crest of the rise was approximately 300 feet in front of him; and that after crossing over the crest he had approximately 100 feet to travel before reaching the Webb car. It was on this down portion, the last 100 feet, that he encountered ice and snow. Rhoton testified that before and after he crossed over the rise in the highway he was traveling in second gear "just moseying up the hill; just poking in second gear". Both Mr. and Mrs. Rhoton testified that they did not see the
Webb and Clark cars before reaching the crest of the rise and that as they approached the crest it was not possible to see anything ahead except the road. This statement is refuted by the photographs in evidence. "We are not bound, even as an appellate court, to believe a mere witness in a case when it appears from conclusive physical facts or otherwise patently that such witness is either perjured or clearly ...