MORRIS et al.
AERO MAYFLOWER TRANSIT CO. et al
Rehearing Denied April 22, 1952.
Judgment as to defendant Reilly reversed with instructions.
V. L. Hash and Virginia Hash, of Phoenix, for appellants.
Stockton & Karam, of Phoenix, for appellee Joseph A. Reilly.
Scott & Green, of Phoenix, for appellee Aero Mayflower Transit Co.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[73 Ariz. 391] On the 25th day of July, 1948, plaintiffs, appellants herein, as proverbial innocent bystanders, were involved in a collision at 48th and East Van Buren Streets between a heavy truck and trailer and a 1937 Model Ford automobile owned and operated respectively by the Aero Mayflower Transit Company, a corporation, whose principal
place of business is in Indianapolis, Indiana, and Joseph A. Reilly of Mesa, Arizona, defendants and appellees herein.
[73 Ariz. 392] Plaintiffs sustained major injuries and brought separate actions against the defendants. The true name of John Doe, driver of the truck, is Glen Wiley upon whom no process of service was had and who, therefore, is not properly before this court. The two causes of action were consolidated for trial and tried to a jury. A verdict was returned in favor of defendants and in each case judgments entered thereon. Plaintiffs appeal to this court from said judgments and from the orders denying plaintiffs' motions for a new trial.
The specific negligence upon which plaintiffs base their cause of action is that the defendant Reilly drove his automobile south on 48th Street and entered the intersection of Van Buren at a high and negligent rate of speed under the circumstances then existing which proximately caused the injuries to the plaintiffs and that at the time and place his brakes were wholly inadequate and defective; that the truck and trailer operated by the defendant Aero Mayflower Transit Company had a gross weight of 20,000 pounds and that the driver thereof was operating it at a speed in excess of that permitted by law for vehicles of that kind and that it was traveling at a speed of 60 miles per hour whereas the speed provided by law for such vehicles at that place, it is alleged, is 25 miles per hour. The defendants deny generally and specifically the allegations of the complaint, and the defendant Reilly plead as an affirmative defense contributory negligence on the part of the plaintiffs in that they were then and there driving and operating the said motorcycle on the left (or wrong) side of the road. He further interposed the defense that immediately prior to reaching the intersection of 48th Street and East Van Buren the brakes on his automobile suddenly then and there failed; that he had no prior knowledge of defects in said brakes and that by reason of their failure he was suddenly faced with an emergency and that the accident resulting therefrom was unavoidable. A cross-claim was filed by the defendant Aero Mayflower Transit Company against Joseph A. Reilly but the issues there involved are not before us.
Plaintiffs have presented eight assignments of error, the first of which is based upon the proposition that the court erred in giving an instruction on behalf of defendant Reilly on contributory negligence upon the ground that there is no evidence in the record to justify an instruction thereon.
This necessitates a review of the evidence. The facts are that on the date the collision occurred between the truck and the Ford car as alleged in the complaint, plaintiffs had stopped their motorcycle on 48th Street eight or ten feet south of the south curb line of Van Buren. Plaintiffs furnished the only testimony concerning their position on 48th with respect to the center of the street. They both testified they were stopped on the east half of 48th Street; that they had dismounted and were standing on the west side of the motorcycle [73 Ariz. 393] which was pointed north. Van Buren Street is paved and is 56 feet wide between the curbs at that point. There are stop signs both on the north and south sides of Van Buren. 48th Street is 46 feet wide at that point and is a graveled highway south of Van Buren. The truck involved together with its cargo weighed 21,000 pounds. It was proceeding in a westerly direction on Van Buren Street on a one per cent down hill grade at a speed of at least 30 to 35 miles per hour when the Ford car, according to the testimony of Truman DeWitt, a disinterested witness, ran out into Van Buren at approximately the same speed. Glen Wiley, driver of the truck, testified to ...