George WELCH, Jr., as Administrator of the Estate of Delbert Clayton, Deceased, Appellant,
Ira Jewell MEDLOCK and Magma Copper Company, a Corporation, Appellees.
[79 Ariz. 248] Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, by George H. Rawlins and George Welch, Jr., Phoenix, for appellant.
Snell & Wilmer, by Mark Wilmer, Phoenix, and Tom Fulbright, Florence, for appellees.
This is an action brought by George Welch, Jr., as administrator of the estate of Delbert Clayton, deceased, as plaintiff (appellant), against Ira Jewell Medlock and the Magma Copper Company, a corporation, as defendants (appellees), to recover damages for the death of the deceased which plaintiff alleges was caused by the negligence of defendants in an automobile collision between a Dodge pickup operated by decedent and a Ford truck operated by the defendant Ira Jewell Medlock, as employee of the defendant Magma Copper Company. Defendants answered denying negligence and affirmatively alleged contributory negligence. The case was tried before the court with a jury, and resulted in a verdict for the defendants signed by nine jurors. The plaintiff made a motion for a new trial, which motion was denied. He prosecutes this appeal from the order denying said motion and from the judgment entered therein. Appellant will be designated as plaintiff, and appellees as defendants.
The complaint in the lower court was based on the alleged wrongful death of decedent. The facts, stated in a light most favorable to sustaining the verdict and judgment, are as follows:
On August 15, 1952, at approximately 10:30 a. m., decedent-accompanied by two friends, Lee Hicks and his son, Bynum Hicks-was driving a 1937 Dodge pickup truck south along U. S. Highway 80-89, approximately 3 miles south of Florence Junction. From that point south the highway was under construction for a distance of approximately 1 mile; circumventing this construction zone was a parallel detour road along the west side of the highway, having a graded dirt surface approximately 24 feet in width.
As the Dodge truck driven by decedent approached the detour, there were two heavy Ford flat-rack trucks, belonging to defendant Magma Copper Company, being [79 Ariz. 249] driven in a northerly direction along the detour and approaching its north terminus, where the detour curved upward in an easterly direction and entered the main highway, which is a two-lane paved thoroughfare.
The first of these two trucks entered the main highway and passed decendent's truck immediately before it entered the detour. The second truck was driven by defendant Medlock and was following approximately 150 to 200 feet behind the first truck through a dust cloud of some debatable magnitude and density, which had been stirred up by the first truck. Decedent's truck turned off
the highway and had gone approximately 50 feet into the detour when it collided with the second truck driven by defendant Medlock, killing decedent.
The testimony of L. H. McMahan, Arizona Highway Patrolman, who investigated-but did not observe-the accident, indicated that the point of impact was 9 feet from the west side of the detour road. McMahan also testified that at this point there was a shoulder or strip of 'very soft, loose sand,' about 6 inches deep and from 4 to 5 feet in width, which extended along the east side of the detour and which was not 'used by the cars.' The flat-rack of the Ford truck driven by defendant Medlock was 7 feet 6 inches in width and extended outward beyond the cab about 18 inches. This overhanging bed of the truck collided with the left side of decedent's truck, shearing the left hand windshield post and ripping off the left door of the pickup.
There are four assignments of error, the first three upon the admission in evidence of a document entitled 'Arizona Highway Patrol Fatality Sheet' (defendants' Exhibit A) and the fourth upon an instruction on contributory negligence requested by defendants and given by the court. We will consider these assignments as grouped, in their order.
The import of Patrolman McMahan's testimony given at the trial was to the effect that at the point of impact defendants' truck was over the theoretical center line (unmarked) of the detour road. On cross-examination he identified defendants' Exhibit A (the fatality sheet) as having been prepared, signed and delivered by him to the coroner at Superior. Counsel for defendants offered the exhibit in evidence for the avowed purpose of impeaching the testimony of McMahan. Over the strenuous objection of plaintiff the entire report was admitted in evidence and read to the jury. Included therein was the following paragraph written in McMahan's handwriting:
'Deceased (Driver of No. 1 Vehicle) came into Detour-Vision obscured by Heavy Dust hangning over detour-Vehicle Vehicle No. 2 coming thru Dust Pall- 1 & No. 2 sideswiped-Left front corner of Truck Bed on No. 2 vehicle-struck & tore off entire left door and [79 Ariz. 250] side of No. 1 vehicle-Possibility that No. 1 was just over c. l. of Detour-Because of road condition of the time & place. Poor visibility-no citations issued.' (Emphasis supplied.)
Confronted with the inconsistency between his testimony and the report, witness explained he had made a mistake in the report, that where it read 'Possibility that No. 1 was just over c. l. of Detour' he intended to have stated it was the No. 2 car that was just over the center line.
Counsel for plaintiff requested that the court instruct the jury that the exhibit was being admitted solely for the purpose of impeachment and not to prove the truth of the statements therein made. The court denied counsel's motion-repeatedly made-for such an instruction regarding the exhibit, except finally the court did admonish the jurors that the last sentence, reading: 'Because of ...