F. D. ELDREDGE and Agnes Eldredge, husband and wife, and Loren D. Eldredge, Appellants,
W. Fred MILLER and Susan M. Miller, husband and wife, and Susan Miller, a minor, by her guardian ad litem, W. Fred Miller, and Theodore Oltsvig, Appellees.
Rehearing Denied Jan. 11, 1955.
[78 Ariz. 143] Shimmel, Hill & Hill, Phoenix, for appellants.
Evans, Hull, Kitchel & Jenckes, Jos. S. Jenckes, Jr., Phoenix, for appellees W. Fred Miller, Susan M. Miller and Susan Miller, a minor.
Action by W. Fred Miller, Susan M. Miller, his wife, and Susan Miller, a minor, by guardian ad litem, as plaintiffs against Theodore Oltsvig, F. D. Eldredge, Agnes Eldredge, his wife, and Loren D. Eldredge, as defendants, wherein plaintiff claim damages resulting from an automobile accident which is alleged to have been caused by the negligent operation of the Eldredge and Oltsvig cars.
The minor claims personal injuries and the adult plaintiffs claim special damages by reason of expenses for hospital, medical and dental care of the minor. Defendants Eldredge cross-claimed against defendant Oltsvig, alleging negligence on his part and that plaintiffs' damages and cross-claimants' damages were proximately caused thereby. After trial before a jury a verdict was returned in favor of the minor Susan Miller in the amount of $10,000 and in favor of plaintiffs W. Fred Miller and his wife in the sum of $1,609.80 against all defendants. The jury also returned a verdict on the cross-claim in favor of defendants Eldredge and against defendant Oltsvig in the sum of $75. The latter verdict was set aside by the court upon the ground it was not based upon any competent evidence and the court rendered judgment upon the verdict in favor of the plaintiffs for the respective amounts. Defendants Eldredge having made a motion for judgment notwithstanding the verdict and a motion for new trial and the same having been denied, appeal.
The accident occurred at the intersection of 18th and Grand Avenues in the City of Phoenix. Grand Avenue runs at an angle in a southeasterly direction. 18th Avenue runs north and south. The car in which the minor, Susan Miller, was riding was traveling on Grand Avenue in a southeasterly direction. The defendant Loren D. Eldredge was driving the Eldredge car in a northwesterly direction in Grand Avenue and the defendant Oltsvig was driving his [78 Ariz. 144] car south on 18th Avenue. Oltsvig after reaching the intersection pulled into Grand Avenue and stopped on Eldredge's side of the street to permit the Miller car to pass, intending to make a left turn and proceed southeasterly on Grand Avenue. The Eldredge car collided with the Oltsvig car and careened into the Miller car, thus causing the damages for which the verdicts for plaintiffs were returned.
At the request of the plaintiffs the court gave the jury an instruction embodying portions of our statute concerning the operation of motor vehicles among which was a portion of subsection (b), section 66-175, 1952 Cum.Suppl., A.C.A.1939, section 144, chapter 3, Laws 1950, 1st S.S., as follows:
'Every motor vehicle shall be capable at all times and under all conditions of loading of being stopped on a dry smooth level road, free from loose materials, upon application of the foot brake within a distance of 30 feet when traveling at 20 m.p.h.'
The instruction and the statute concern the performance and ability of brakes. It means that every motor vehicle when operated on the highway shall be equipped with brakes capable of stopping the car under the conditions stated in the statute and the instruction within 30 feet when traveling at 20 miles per hour. Following the giving of the foregoing instruction, the court further told the jury that a failure to comply with the statutory provisions was negligence per se and if the jury found the defendants or either or them violated the same and that such violation proximately caused or contributed to plaintiffs' injuries, it must find for the plaintiffs.
Appellants state there is no evidence that the brakes of the Eldredge car were defective and therefore no factual basis upon which to predicate the instruction. The function of instructions is to give the jury the law which it shall apply to the facts as it finds them to exist from the evidence. To be warranted an instruction necessarily assumes the jury can find facts to which the instruction is applicable.
Instructions are necessarily hypothetical, the hypothesis being that the jury can find certain facts. Otherwise, the court would be introducing facts into the evidence and might well lead the jury to believe that in the opinion of the court the existence thereof is possible. Hence the rule that an instruction not based on the evidence is erroneous. Butane Corp. v. Kirby, 66 Ariz. 272, 187 P.2d 325.
There was no direct evidence of defective brakes, and the evidence also indicates that the brakes took hold before the collision. Plaintiff-appellees refer us to circumstantial evidence which they say warrants an inference of such defect. The reference is to portions of testimony of [78 Ariz. 145] the defendant Oltsvig where he stated he saw Eldredge 'duck up and down and go back down again on his back. He was reaching for the foot pedal for the brake.' and to portions of Loren Eldredge's testimony wherein he stated he was going 30 miles an hour and was just too close to stop. We cannot agree that the circumstances warrant any possible inference that the Eldredge car was being operated without lawful brakes, and the instruction was reversible error.
The defendant Oltsvig gave as his opinion that the Eldredge car was traveling 55 miles an hour. Appellants present for our consideration whether the trial court erred in permitting this estimate or opinion. A witness who is otherwise qualified and who observes a car in motion may give his opinion of its speed it the observation is sufficient under the circumstances to give the opinion any possible evidentiary value. Harnau v. Haight, 189 Mich. 600, 155 N.W. 563, 13 N.C.C.A. 566. When the decision for admission or exclusion of such opinions must be based upon the degree of observation, the authorities are not harmonious. For illustration, Michigan in one decision held it should be excluded when the car was 20 feet distant. Wright v. Crane, 142 Mich. 508, 106 N.W. 71, 19 Am.Neg.Rep. 336. On the other hand, the same jurisdiction held observation for a distance of 40 feet was adequate. Jones v. Detroit Taxicab & Transfer Co., 218 Mich. 673, 188 N.W. 394. California has gone to the extreme and held that a mere glimpse at a distance of five feet was adequate. Schwenger v. Gaither, 87 Cal.App.2d 913, 198 P.2d 108. It has been held that observing an approaching car qualifies one to render an opinion of its speed. Ford v. Southwestern Greyhound Lines, 5 Cir., 180 F.2d 934; Gerish v. Hinchey, 120 Neb. 51, 231 N.W. 503. Also it has been held that when the question is close, the opinion should be admitted and the question of whether or to what extent it has any weight should be left to the jury. Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768. We think that the correct rule is that if there is any possibility the opinion has evidentiary value, however slight, the trial court should not be reversed for admitting it. In the instant case, the witness saw the Eldredge car coming approximately a block distant; he saw the car in which plaintiff Susan Miller was riding about four to five car lengths away (traveling at about 30 miles an hour) which reached him approximately simultaneously with the Eldredge car; and he saw the Eldredge car about 15 or 20 feet before it struck him. We think under all these circumstances the court did not err in admitting the opinion testimony and permitting the jury to determine whether or to what extent it should be given weight.
Appellants contend that when the jury returned a verdict against all defendants [78 Ariz. 146] on the complaint and also a verdict against Oltsvig in favor of defendants Eldredge on their cross-claim, the verdicts are inconsistent and neither can stand. While Oltsvig's answer to the cross-claim pleaded contributory negligence, no instructions were asked for or given on this issue. The instructions on the cross-claim were very meager but we interpret them to be, in effect, that on the cross-claim the Eldredges were plaintiffs and Oltsvig was defendant and as such plaintiffs, cross-claimants had the same burden of proving their case by a preponderance of the evidence as the plaintiffs Miller. The jury ...