Rehearing Denied Feb. 20, 1953.
[75 Ariz. 118] Moore & Romley and Wm. P. Mahoney, Jr., of Phoenix, for appellant.
Evans, Hull, Kitchel & Jenckes, of Phoenix, for appellees.
LA PRADE, Justice.
This case presents an appeal from a judgment on a verdict denying plaintiff relief for personal injuries suffered in a pedestrian-automobile truck collision, and from an order denying plaintiff-appellant's motion for a new trial.
Plaintiff, a woman of 69 years at the time of the accident, was knocked down and seriously injured by a Chevrolet pickup truck belonging to the defendant, Sam Scott, and driven by his employee, Vernon Murphy, a boy of 16 years of age. The accident happened on the south side of West Washington Street, where it is intersected from the north by 11th Avenue, making what is known as a 'T' intersection, since 11th Avenue does not extend through to the south. Plaintiff, at the time of the accident, was walking in an unmarked crosswalk which is defined by Section 16(a) of the Uniform Act Regulating Traffic on Highways in Arizona, Chap. 3, Laws 1950, 1st S.S., as 'That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs * * *'. Washington Street at the place under consideration is paved from curb to curb, a distance of 60 feet. It has two parking lanes, one on either side, and four driving lanes--two for eastbound traffic and two for westbound traffic. Each parking lane and each driving lane is approximately 10 feet wide. Plaintiff was endeavoring to cross Washington Street from the south to the north at the intersection. Mrs. Scott testified that before she stepped off the curb she looked to the west to see if there was any oncoming traffic; that after stepping off the curb she again looked to the west, at which time she saw two automobiles abreast and which appeared to her to be about 300 feet away, approaching at a speed which she was not able to estimate. Presumably one of these cars was the truck driven by defendant Murphy, who was driving in the passing lane. The 'other' car was proceeding in the slow lane, and at the time or shortly before the impact was a carlength ahead of Murphy and to his right.
Murphy testified that he was driving at a speed of 25 miles per hour, and that when his front bumper came abreast of the rear bumper of the 'other' car he for the first time saw the plaintiff, who stepped out into his path from in front of the 'other' car. Murphy maintained that he was keeping a lookout for pedestrians but admitted he did [75 Ariz. 119] not see plaintiff until she stepped out about a car-length in front of him; that he 'hit the brakes', but was unable to stop in such distance as to avoid running into and against plaintiff although he, by his sudden stop, avoided running over her.
Murphy's testimony was given by way of deposition under cross-examination. He was not present at the trial and defendants offered no testimony on the question of liability. Such testimony as there was on this phase was contained in the deposition of Murphy, the testimony of plaintiff, and an officer who came to the scene after the accident. Murphy admitted he was not wearing glasses at the time of the accident as he was required to do by his driver's license, but claimed that he could see a pedestrian 'quite a distance, at least a block'.
Due to a moderate rain then prevailing, plaintiff stated that she was carrying her opened umbrella up in one hand and a satchel in the other. She was not able to identify in which hand the umbrella was carried but did admit that she was shielding her left side, the direction from which Murphy was approaching. Plaintiff also admitted that she stopped in the street to look for cars that might be coming from an undetermined or non-existent side street or alley, and was not thinking about the two vehicles which she knew were approaching her. She further testified that just as she stepped across the white line into the passing lane, she took her 'third look', and there saw the pickup truck almost upon her.
At the close of the evidence plaintiff moved for a directed verdict on the subject of liability, leaving for the jury only the question of the amount of damages, on the ground that there was no dispute in the evidence of the fact that plaintiff's injuries were proximately caused by the negligence of defendants. The motion was denied.
At the instance of the defendants and without objection on the part of the plaintiff, the court instructed the jury on the law of contributory negligence.
The court refused to give plaintiff's submitted instruction defining wanton negligence, which was to the general effect that the defendants could not avail themselves of the defense of contributory negligence if they were guilty of wanton negligence which proximately caused, or contributed to, the injuries sustained by the plaintiff. This instruction was objected to on the ground that there was no evidence of wanton negligence on the part of the defendants and presumably this was the reason for the court's ruling.
Plaintiff presents four assignments of error:
1. The refusal of the trial court to direct a verdict in her favor on the subject of liability;
2. The denial of her motion for a new trial for the asserted reason that the verdict and judgment were ...