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Musgrave v. Githens

Supreme Court of Arizona

March 13, 1956

V. C. MUSGRAVE, Appellant,
v.
Robert G. GITHENS, Robert Grant Morris, and Hadley Auto Transport Co., a corporation, Appellees.

[80 Ariz. 189] W. Roy Tribble, Chandler, and Wm. J. Richmond, Phoenix, for appellant.

Kramer, Roche & Perry, by F. Haze Burch, Phoenix, for appellees.

UDALL, Justice.

V. C. Musgrave, plaintiff-appellant, brought this tort action against Robert G. Githens, Robert Grant Morris, and Hadley Auto Transport Co., a corporation, defendants-appellees, seeking both compensatory and punitive damages in substantial amounts for personal injuries sustained in an automobile collision. The parties will hereafter be referred to as plaintiff and defendants.

According to the briefs and the other meager records before us, plaintiff, on July 22, 1953, was driving a Chevrolet pickup truck southeastward toward Phoenix on Grand Avenue, traveling in the extreme right-hand lane, when he ran out of gas and stopped his truck with the right wheels of said vehicle on the shoulder of the road and

Page 675

the left wheels on the paved portion of the highway. A Ford tractor and semi-trailer 'carry-all' laden with automobiles, owned by the defendant corporation and driven by defendant Morris, was in the center lane of said highway and proceeding in the same direction, i. e., approaching plaintiff's truck. At this moment a third automobile going in the same direction, driven by defendant Githens, a young Luke Field airman, attempted to pass the Hadley 'carry-all' truck on the right side thereof, collided with it and caromed off, striking plaintiff Musgrave who was at that time standing near the left side of his pickup truck. This collision, allegedly due to the negligence of defendants and each of them, occasioned the injuries complained of by plaintiff. The answers of defendants deny their negligence, or that their negligence, if any, was the proximate cause of said injuries to plaintiff or his truck. Defendant Githens pleads contributory negligence on the part of plaintiff. Various motions to dismiss were denied. The case was tried to the court, sitting with a jury, the trial lasting some five days. A unanimous verdict in favor of the defendants was rendered by the jury, and judgment that plaintiff take nothing was entered thereon. A motion for new trial was made and denied. This appeal followed.

Plaintiff Musgrave filed an affidavit of inability to give a cost bond on appeal, and presumably because of lack of funds no reporter's transcript of the proceedings had at the trial is before us. The record presented[80 Ariz. 190] consists only of the pleadings, the written instructions given by the court, a one-page transcript of the objection made by plaintiff to defendant's instruction No. 4, and a photograph, taken shortly after the collision, depicting the skid marks on the pavement and the three motor vehicles involved. It should be stated that plaintiff has been fit to frequently change attorneys during the turbulent course of this litigation.

Plaintiff's two assignments of error are both directed to the trial court's giving of defendants' requested instruction No. 4, which reads as follows:

'Ladies and gentlemen of the jury, you are instructed that if you find from a preponderance of the evidence that plaintiff's motor truck was disabled upon the travelled portion of Grand Avenue, or the shoulder thereof, during daylight, and if you further find from a preponderance of the evidence that plaintiff did not display two red flags upon the readway in the lane of traffic occupied by his disabled motor truck, one at a distance of approximately 100 feet in advance of his vehicle and one at a distance of approximately 100 feet to the rear of his vehicle, then I charge you that such acts or omissions constitute negligence per se, and if you find that this negligence was a proximate or concurrent cause of the accident and plaintiff's injuries, then your verdict must be for the defendants. 66-182a, A.C.A.1939 (A.R.S. § 28-961).' Emphasis supplied.)

The instruction was allowed over the following objection of plaintiff:

'We object to the giving of defendant Githens' requested instruction No. 4 on the ground that in the construction of the statute 66-182a requiring a motor truck to display two red flags at a distance of approximately one hundred feet front and back, that the pickup truck involved in this accident belonging to the plaintiff is not such a vehicle as comes within the purview of the statute. In other words, a pickup truck is not a motor truck or such a vehicle as is required to have flags front and rear when upon the highway.'

As to plaintiff's first assignment, defendants contend that the half-ton pickup truck owned and operated by plaintiff at the time of the collision is a 'motor truck' within the provisions of Section 66-182a(c), A.C.A.1939 (1952 (Cum.Supp.), upon which their instruction was founded. We are thus faced with a narrow question of statutory construction, namely whether the term used in that section encompasses a 'pickup truck' such as that owned and operated by plaintiff, so as to justify the giving of defendants' instruction No. 4.

Page 676

Speculation as to the legislative intent behind the term 'motor truck' largely has been avoided by the applicable statutory definition found in Section 66-151c(a), A.C.A.1939[80 Ariz. 191] ...


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