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Kelly v. Anderson

Supreme Court of Arizona

November 10, 1952

KELLY
v.
ANDERSON et al

Judgment reversed and cause remanded for new trial.

V. L. Hash and Virginia Hash, of Phoenix, for appellant.

Moore & Romley, of Phoenix, for appellees.

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

OPINION

Phelps, Justice.

Page 834

[74 Ariz. 365] This appeal is taken from an order of the lower court granting defendants' motion for an instructed verdict at the close of plaintiff's case.

The facts are that in June, 1947, plaintiff was employed as a checker or cashier at a grocery store in the 2400 block on East Washington Street in the city of Phoenix; that one Charles Mann, pursuant to arrangements previously made, called at the store at about 10:30 p.m. on the night of June 24th of that year to pick her up after she had completed her duties at the store, to go for a ride. The couple rode around for a while and overtook an acquaintance walking on West Buckeye Road by the name of Wright who was considerably under the influence of intoxicating liquor. They picked him up and drove back to the city of Phoenix, stopping at the Busy Bee bar, and at the Casino across from the court house, thence returning to the West Buckeye area. There is nothing in the record to the effect that either plaintiff or the driver of the car in which she was riding had been drinking that evening. There was evidence, however, that Wright and Mann engaged in singing during a portion of the time they were driving over the city having only the plaintiff as their audience.

They passed the plaintiff's house and for some reason did not let her out but drove on west to deliver their friend Wright at his home. As they were driving along the Buckeye Road and particularly at 2308 West Buckeye they ran into a parked and loaded truck and trailer belonging to the defendant Campbell which had been driven by and had been parked there by the defendant Anderson. Anderson lived in the rear of 2308 West Buckeye Road and had parked the Campbell truck and trailer along the north curb of the road for the purpose of spending the night at his home. He left the truck and trailer unlighted, and parked in a business district. The car in which plaintiff was riding ran into the rear of the trailer critically injuring the plaintiff. The [74 Ariz. 366] evidence discloses that the truck was parked within eighteen inches to two feet of the north curb of the road. Buckeye Road at that point was 50 to 60 feet wide and there is no evidence of any other traffic on the road at the time and place other than the car in which plaintiff was riding, thus leaving a space of approximately 40 to 50 feet south of the truck for plaintiff to pass. Buckeye Road at that place is, according to all of the evidence, a four-lane highway. The car in which plaintiff was riding was driving close to the north curb.

Plaintiff produced evidence from occupants of the car that there was some smoke at that particular point coming from a city dump located on South 15th Avenue, which was then burning. The evidence further showed there was located east of the truck on the north side of the highway a service station approximately 100 feet east thereof which was then lighted. There was located immediately across the road south of the parked truck and trailer a motel which had a light upon the sign in front of it and immediately alongside the truck there was located a light then burning over a tire shop. About these facts there is no conflict. But there is no evidence concerning the character of these lights or their illuminating effect upon that area under normal

Page 835

atmospheric conditions. The accident occurred between 1:30 and 2:00 o'clock in the morning of June 25, 1947.

Plaintiff alleges in her complaint that the parking of the truck and trailer upon the public highway at the time and place without leaving it lighted in accordance with the provisions of section 66-137, A.C.A. 1939, constituted negligence for which the defendants are liable. Plaintiff further alleged that the street at ...


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