START et al.
[76 Ariz. 148] Carl Tenney and James A. Yankee, Phoenix, for appellants.
McKesson & Renaud, J. Gordon Cook, Phoenix, for appellee.
This is an appeal from a judgment that plaintiffs take nothing, entered at the close of plaintiffs' case, and from an order denying their motion for new trial. This suit for damages was tried to the court sitting without a jury. The parties are before us in the same order as they were in the lower court, hence we shall herein refer to appellants and appellee as plaintiffs and defendant, respectively.
The complaint alleges that due to the reckless and negligent manner in which the [76 Ariz. 149] defendant drove his automobile into, among, and upon a herd of cattle that six head of dairy cattle belonging to the plaintiffs were killed or maimed, to their damage in the total sum of $1,150. The original complaint alleged general acts of negligence, but in response to an order for a more definite statement, plaintiffs alleged, inter alia, that defendant
'* * * was driving at a speed greater than would allow him to stop within the illumination of his headlights and was overdriving his headlights; and/or in the alternative: defendant was driving his automobile without keeping a proper lookout ahead and was not vigilant in seeing objects upon the highway; * * *.'
Defendant at the close of plaintiffs' case moved
'* * * for judgment on the ground that the plaintiff has wholly and totally failed to prove any act of negligence as far as the defendant is concerned. He not only has failed to prove any general acts of negligence, he has failed to prove any of the specific acts of negligence which he has pleaded and which it is incumbent on him to prove. * * *'
Defendant's motion was in effect a motion under Rule 41(b), Rules, Civil Procedure, Section 21-916, A.C.A.1939, for dismissal of the complaint and judgment thereon on the ground that upon the facts and the law the plaintiffs had shown no right to relief.
The court by its judgment obviously considered the motion well taken. Plaintiffs by appropriate assignments of error take issue with the court's conclusion, for the reason 'that negligence was clearly and substantially proven by showing appellee (defendant) failed to see these cattle until immediately before striking them.'
In order to determine the appeal we have carefully examined the evidence adduced at the trial. The evidence is singularly free from conflict. Only six witnesses testified. They were: the two plaintiffs; Frank Owen, a nearby farmer-dairyman who heard the crash and immediately investigated; Highway Patrolman Shephard; Supervisor of Safety Wilkerson of the state highway department; and William Feldmeier from the board of supervisors' office, Maricopa County. The defendant had not been subpoenaed as a witness and and was not present to respond to a call by plaintiffs' counsel for cross-examination under the statute, as an adverse party, nor had his deposition previously been taken.
The undisputed facts are these: Plaintiffs Ross Stuart and his brother, W. R. Stuart, are farmers who live in the same area on lower Buckeye Road, a few miles south and west of Phoenix. They are also engaged in dairying, each owning certain of the Holstein dairy cattle involved in this suit. On December 31, 1951, some 71 head [76 Ariz. 150] of their cattle were corralled for the night at Lateral 19, at a point one-quarter of a mile south of lower Buckeye Road. The corral consisted of a good four-strand barbed wire fence, with cedar posts fifteen feet apart and with some stays between. At some time during the night all the cattle broke out of the corral, presumably due to fright caused by 'a lot of shooting around there celebrating New Years' by the occupants of a nearby subdivision. Forty-five or fifty head of these loose cattle strayed one and three-eighths miles up onto Buckeye Road to a point some four hundred yeards west of Lateral 18. Buckeye Road at that point is a main thoroughfare, being U. S. Highway 80. Plaintiffs had no knowledge until 7 a. m. on New Year's day that their cattle had broken out of the corral where they had been penned for the night.
At approximately 5:30 a. m. on the morning of January 1, 1952, the defendant, Angel V. Castro, was driving a 1949 Mercury automobile west on Buckeye Road. Riding in the car with him were six other young Spanish-Americans, five girls and one boy. The car was traveling at a speed, so he told the partolman, of 50 miles per hour when it plowed into this herd of dairy cattle that was completely blocking the highway. Four animals belonging to plaintiffs were killed outright, one was so injured that she died a short time later, another maimed animal had to be sold at a sacrafice, and several other head showed evidence of being bruised. The defendant admitted to the officer who arrived on the scene some ten minutes after the accident occurred that he 'did not see the cattle until he was right on top of them', that they 'seemed to come from the side out of nowhere'
. From the physical facts on the ground it appeared that the car travelled approximately two car-lengths from the point of first impact. The defendant stated his brakes were in good order, but the only skid marks were beneath and immediately behind the car. The car was upright in the center of the ...