Rehearing Denied March 3, 1953.
Herbert Mallamo, of Phoenix (Leslie Parry, Phoenix, of counsel), for appellant.
Moore & Romley, Chas. L. Hardy, and William P. Mahoney, Jr., of Phoenix, for appellee.
[75 Ariz. 132] STANFORD, Chief Justice.
Action was brought in the trial court by the plaintiff-appellant herein against the defendant-appellee for damages to her car, sustained in a collision at 20th Street and Roosevelt Street in Phoenix, Arizona on October 4, 1949. This appellant was not the driver of the car nor was she in the car at the time of the collision. The car was borrowed of this appellant by her mother who was going on an independent errand.
The car of appellant was going west on Roosevelt. The car of appellee was going south on 20th Street. Drivers on Roosevelt had the right of way over 20th Street drivers, and on 20th Street there was a warning sign some 75 feet to the north of the entrance of Roosevelt, the warning being that a stop signal was ahead, and there was a stop signal at the intersection of Roosevelt Street.
After a trial by jury the verdict and judgment was for the appellee and appellant now appeals from the judgment and from the denial of the motion for new trial.
Appellant's car, being driven westward, entered the intersection of Roosevelt & 20th Streets before appellee's car entered the intersection. There were no stop signals or signs for drivers on Roosevelt at this place and appellant's car was at a point about two-thirds of the way through the intersection when it was struck by appellee's car. The driver of appellant's car saw the appellee approaching Roosevelt from the north on 20th Street, and it was her belief, as the evidence shows, that that car would stop as directed by the stop signal and that she would have no trouble going through the intersection. Appellant's car was a 1948 Dodge sedan and was purchased by her in June, 1949. Its value before the accident in question was $1500; and after the accident its salvaged value was between $300 and $325. The car was repaired at a cost of $781.89.
In considering appellant's assignments of error we will take I and IIA together since they both set forth the contention that there was no evidence presented in the lower court to warrant that court in instructing the jury as to contributory negligence on the part of the driver of appellant's car. We shall quote from portions of the transcript wherein the driver of appellant's car was being cross-examined and which we consider pertinent in answering the assignments:
'Q In any event, your testimony now is you entered the intersection going 22 to 25 miles an hour, is that right? A That is right.
'Q And when you saw the other car comming, do you know how fast it was coming? A Yes. He was going 35 to 40 miles an hour. He was coming pretty fast.
* * *
* * *
[75 Ariz. 133] 'Q Did you continue to observe that car from that point, 90 or 100 feet east of the intersection, until the accident occurred? A Yes, sir.
* * *
* * ...