Rehearing Denied June 29, 1954.
[77 Ariz. 277] Laney & Laney, Phoenix, for appellant.
Moore & Romley, Anthony T. Deddens, Phoenix, for appellees.
JESSE A. UDALL, Superior Court Judge.
[77 Ariz. 278]
The sole question presented by this appeal is whether the trial court erred in refusing to instruct the jury as to the doctrine of the last clear chance.
The parties appear here in the same order as they were in the lower court, hence we shall refer to appellant as plaintiff and the appellees as defendants. Plaintiff Arthur Trauscht brought suit against defendants Joe Lamb and Prescilla Lamb, his wife, to recover damages for personal injuries sustained by him as a result of a collision that occurred on Baseline Road south of Phoenix, in Maricopa County, at a point about 300 feet east of the intersection of Baseline Road and Fourteenth Street, about the hour of 2:00 o'clock p. m. on December 22, 1950.
The facts connected with this incident must be taken in a light most favorable to plaintiff, for as we stated in the recent case of Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240, 242, the rule is:
'* * * We must assume that the jury might have believed the evidence upon which an instruction in favor of the losing party was predicated, and that if the correct instruction had been given 'the jury might have rendered a verdict in favor of the losing party.' O'Meara v. Swortfiguer, 191 Cal. 12, 214 P. 975, 976. The truth of the evidence or allegations tending to warrant the instruction offered will be assumed by the court on appeal. (Citing cases.)'
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'In weighing the sufficiency of the evidence in this case to justify the giving of the requested instruction, the inferences which reasonably and logically flow from the evidence are to be considered. Such inferences are a part of the evidence. Atchison, Topeka & Santa Fe R. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167.'
Taking the facts in this light, they appear to be substantially as follows:
Shortly before the accident occurred, the plaintiff drove out of his citrus grove onto Baseline Road in a Ford pick-up truck at a point about 500 feet east of the spot where the collision took place, and proceeded west on the north side of said road at a speed of about 10 to 20 miles per hour. Baseline Road in this area has a width equivalent to the ordinary three-lane highway. At a point approximately 300 feet east of Fourteenth Street plaintiff, after giving a proper signal, made a left-hand turn across the highway to the south for the purpose of entering a private driveway leading south from Baseline Road. Defendants were then driving eastward on the south side of Baseline Road in a Chevrolet sedan at a speed somewhere between 40 and 65 miles per hour. The husband, Joe Lamb, was driving, and his wife Prescilla and their three small children were in the car with him. As plaintiff turned south across the road in front of the on-coming car of defendants he was [77 Ariz. 279] going at a speed of approximately 5 miles per hour, and as his pick-up truck neared the south line of the paved road defendants' Chevrolet sedan struck the pick-up truck at a point slightly to the rear of the center of said truck and on the right side thereof, and as a result of the collision the plaintiff received serious bodily injuries. He was unconscious for a period of six weeks, and up to the date of the trial he still was not sufficiently recovered to be able to testify as a witness in the case.
Defendant Joe Lamb testified that he saw plaintiff's truck almost one-fourth of a mile east of the point of collision but that he did not see the plaintiff turning south in front of him until he was within 50 to 100 feet of the point of collision; that as soon as possible after seeing that plaintiff was making a left turn he applied his brakes and skidded his wheels before colliding with the truck. A skid mark was shown by the photographs admitted in evidence. The paved portion of the road at that point was 33 to 36 feet in width. At a point some 300 to 600 feet west of where the collision took place defendants met another car going west; after passing said car there was no other motor vehicle on the highway between defendants and plaintiff as they approached each other that interfered with their view nor was there on-coming westbound traffic to interfere with
defendants' freedom of movement on the highway. Both parties could see or with reasonable care should have been able to see each other for a space of 300 feet or more before they collided. Another important fact that was testified to by two witnesses was that plaintiff held out his left hand, signalling his intention to turn south, for a distance of approximately 150 feet before he made the turn in front of defendants' car.
The plaintiff in his complaint alleged negligence on the part of the driver of defendants' car. The defendants set up the defense of contributory negligence on the part of the plaintiff. The case was tried to a jury and a verdict was returned in favor of defendants and against plaintiff. Thereafter judgment was entered, motion for new trial was denied, and this appeal followed.
The sole assignment of error made by plaintiff is to the refusal of the trial court to instruct the jury on the last clear chance doctrine. It was the contention of plaintiff that under the facts established by the evidence the doctrine applied, and that this issue should have been submitted to the jury for their consideration. However, the trial court accepted defendants contention that under the evidence adduced it would be improper to give such an instruction, and the defendants cannot now urge that the two instructions submitted by plaintiff were technically incorrect, as no such objection was made in the lower court. Thus, the real question presented by this appeal is whether the doctrine of [77 Ariz. 280] the last clear chance applies to the facts herein.
Defendants' position is set forth in seven propositions of law, and assuming that these propositions are correct in principle, a close analysis of them, taking the evidence as we must in the strongest possible manner in support of the theory of plaintiff, shows that all of said propositions are inapplicable to the facts in this case, with the exception that proposition number six presents a question that deserves consideration. It reads:
'The last clear chance doctrine does not apply where the negligence of the plaintiff or the negligence of both the plaintiff and the defendant continues down to the moment of the accident, in other words, where the negligence of the plaintiff is a concurring or continuing force contributing proximately to the injuries of the plaintiff.'
Plaintiff urges that if the last clear chance doctrine does not apply where the negligence of the plaintiff, or the negligence of both the plaintiff and defendant, continues down to the moment of the accident, then the doctrine as heretofore applied in the courts of this state will be abrogated. The case of Girdner v. Union Oil Co. of California, 216 Cal. 197, 13 P.2d 915, 918, contains the following language which seems to be a complete answer to the legal proposition, supra, relied upon by defendants:
'The element of continual negligence is present in all last-chance cases. If defendant is not able to avoid injuring plaintiff in the exercise of ordinary care, the plaintiff's original negligence continues to be the proximate cause of his own injury, which bars recovery. If, on the other hand, defendant is able to avoid injuring the negligent plaintiff, and negligently fails to do so, plaintiff's original though continuing negligence only remotely contributes to the injury and is not the proximate cause thereof, and hence the applied doctrine, by its own principles, establishes the right of plaintiff to recover notwithstanding the fact that his original negligence would, by its continuing nature, bar a recovery if the doctrine were not applicable. To hold otherwise would be to dispute its existence.'
And in Center v. Yellow Cab Co. of Los Angeles, 216 Cal. 205, 13 P.2d 918, 920, we find the following exposition of the rule:
'* * * The real issue in cases of this character is not whose negligence came ...