[78 Ariz. 25] Fennemore, Craig, Allen & Bledsoe, Phoenix, for appellant.
Shimmel, Hill & Hill, Phoenix, for appellee
PHELPS, Chief Justice.
On February 11, 1948, a car conveying Otis J. Baughn and Mary Fairhurst Baughn, his wife, from Los Angeles to Phoenix and driven by Otis J. Baughn collided with a truck belonging to the Roscoe Moss Company, a corporation, and driven by one Adelbert J. Jones. The collision occurred near Wittman on U. S. Highway 60-70 approximately 20 miles southeast of Wickenburg. The truck was badly damaged. The owner carried insurance against property loss with the plaintiff insurance company who paid said owner the loss sustained in the sum of $5,370.50. The insurer now seeks through subrogation to recover said amount from the estate of Otis J. [78 Ariz. 26] Baughn and Mary Fairhurst Baughn upon the ground of their alleged negligence in the operation of their car at the time and place. Defendant pleaded among other things an unavoidable accident.
The facts are that the truck, a Kenworth, pulling a Frehauf semi-trailer, having an aggregate weight of about 38,000 pounds was proceeding toward Wickenburg at a speed of approximately 47 m.p.h. About 8 o'clock p.m. the driver of the truck observed the headlights of the Baughn car, a 1946 Plymouth sedan, approaching from the opposite direction when it was about a mile distant. The truck was at all times herein mentioned in its proper and lawful position on the right of the center of the highway. The Baughn car proceeding toward Phoenix remained on its right side of the center of the highway until it was within about 100 feet of the truck when it suddenly swerved across the center of the highway at an angle. At that time it appeared to be traveling about 35 m.p.h.
When the front wheels of the Baughn car were 11 feet over the center line of the highway and in the lane being used by the truck traveling in the opposite direction, the right front end of the truck collided with the right side of the Baughn car just in front of the right front door. The truck and car came to rest on the north side of the highway about 50 feet from the point of impact. The front of the truck was resting slightly on top of the Baughn car.
An examination of the highway disclosed no indication that the Baughn car was in distress as it approached the truck. There were no skid marks or scratches on the highway over which it traveled. The road at that point was straight for miles and the Baughn car seemed to be traveling normally until it turned across the center line.
The Baughn car caught on fire and the driver of the truck extinguished the fire and then by use of a flashlight saw the dead bodies of Judge and Mrs. Baughn in an upright position in the car. Judge Baughn was under the wheel leaning against the left door of the car and Mrs. Baughn was lying over against him. He said she was bleeding profusely but Judge Baughn had bled very little. The truck driver only saw a cut on Judge Baughn's forehead about one inch long from which there was a trickle of blood. He saw no other evidence of injury. However, it was developed by other witnesses that the right side of the head of both Judge and Mrs. Baughn had been badly crushed, and that there were other cuts and bruises on their heads and faces. All witnesses testified that Mrs. Baughn bled profusely, some of which was on Judge Baughn but that he had bled very little. So noticeable was the failure of Judge Baughn to bleed that it caused considerable comment among those who saw the bodies. No autopsy was had. The cause was tried to a jury which returned a verdict for defendant and judgment was rendered thereon. From such judgment [78 Ariz. 27]
and from the order denying plaintiff's motion for a new trial plaintiff appeals.
Plaintiff assigns a number of errors which we will consider in the order presented.
First, it is claimed in assignments of error 1, 2 and 3 that the court erred in denying plaintiff's motion for a directed verdict at the close of all the evidence; in denying its motion for judgment in accordance with directed verdict; in denying its motion for judgment n.o.v. and in denying its motion for a new trial. These motions are based upon the ground that the verdict and judgment were contrary to and not justified by the evidence.
In support of its position it is urged that the truck was being driven at the time of the accident in a lawful and proper manner on its right side of the road and that the accident occurred completely on the side of the road rightfully occupied by plaintiff's truck. These facts must be conceded and it must be further conceded that the collision between the truck and the Baughn car was proximately caused by the swerving of the Baughn car to the wrong side of the road and directly into the path of the truck.
It follows that unless Judge Baughn was dead at the time the collision occurred or unless a tire blew out or some defect in the mechanism of his car occurred which made it impossible for him to control its course and which caused it to travel directly into the path of the truck, Judge Baughn was guilty of negligence and his estate must answer in damages for the injury to plaintiff's truck.
There is no evidence either oral or physical of a blowout or of a defect in the mechanism which caused the car to swerve across the road at an angle a distance of 11 feet across the center line of the highway directly into the path of the truck. There were no marks or scratches on the pavement at that point. The evidence is that the car just seemed to travel along the road by itself as it approached and crossed to the wrong side of the road. There is no claim by either party that the swerving of the car across the highway was due either to a blowout or to the defective mechanism of the car.
If Judge Baughn deliberately drove his car onto the wrong side of the road he was guilty of negligence. No one intimates this as a possibility. Or if he went to sleep while driving and thus permitted the car to cross to the wrong side of the road he ...