Marshall L. MITCHELL and Pearl M. Mitchell, husband and wife, Appellants,
Magnus EMBLADE, Appellee.
[80 Ariz. 400] Shimmel, Hill & Cavanagh, Phoenix, and Westover & Mansfield, Yuma, for appellants.
Rolle, Jones & Pace, Yuma, for appellee.
Magnus Emblade brought suit against Marshall L. Mitchell and Pearl M. Mitchell, husband and wife, seeking damages resulting from the collision between a motorcycle operated by plaintiff and an automobile driven by defendant Pearl M. Mitchell. The collision occurred on 4th Avenue (Highway 80) between 14th and 15th Streets in Yuma, Arizona, on March 12, 1954. Mrs. Mitchell, while proceeding north on 4th Avenue, attempted to make a [80 Ariz. 401] left turn into a driveway leading to a parking area near her husband's place of work and in so doing collided with plaintiff who was proceeding south. The basis of plaintiff's suit is the alleged negligence of Mrs. Mitchell in the operation of her automobile. Defendants claimed contributory negligence on the part of the plaintiff. The matter was tried to a jury which returned a verdict in favor of plaintiff in the sum of $15,000. From this verdict and judgment entered thereon and denial of motion for new trial defendants appeal.
At the trial plaintiff testified he was driving at a speed of approximately 30 miles per hour and that on the west side of 4th Avenue between 12th and 13th Streets (approximately two blocks from the scene of the accident) there was a highway sign designating the speed limit to be 35 miles per hour. The evidence was in conflict as to the existence of the sign at this location. Plaintiff also testified that on the west side of 4th Avenue at 8th Street there was a 25-mile per hour sign for southbound traffic and a like sign on the east side of 4th Avenue at 16th Street for northbound traffic. Over defendants' objection the court admitted in evidence an ordinance of the City of Yuma passed in 1946 and a resolution of the state highway commission adopted in 1948 fixing a maximum speed limit in the area where the accident occurred at 35 miles per hour. The resolution was apparently adopted under the power given the highway commission
by section 59-105(6), A.C.A.1939 (A.R.S. § 18-106, subd. 7), to
'exercise complete and exclusive control and jurisdiction of the state highways, and prescribe such rules and regulations to govern the use of all state highways as it may deem necessary for public safety and convenience * * *.'
The undisputed evidence shows this area to be a business district as defined by section 66-151q, 1952 Supp., A.C.A.1939 (A.R.S.1956, § 28-107).
Defendants' contention in the trial court and in this court is that the legislature in 1950 enacted a highway code which established a maximum speed limit of 25 miles per hour in business districts and this law operated to supersede the prior ordinance and the highway commission resolution. At the times the ordinance and resolution were passed and adopted, the statutes fixed the maximum speed limit in business districts at 20 miles per hour, section 66-101, A.C.A.1939, and gave local authorities power to increase this maximum. Section 66-102, A.C.A.1939. By the new act passed in 1950 these sections were repealed and a maximum limit of 25 miles per hour provided for business districts, section 66-157a, 1952 Supp., A.C.A.1939 (A.R.S.1956, § 28-701), and local authorities with the approval of the highway commission were given the power to increase this limit. Section 66-158a, 1952 Supp., A.C.A.1939 (A.R.S.1956, § 28-703). The new statute likewise[80 Ariz. 402] changed the definition of business districts. Section 66-151q, 1952 Supp., A.C.A.1939 (A.R.S.1956, § 28-107).
It is our view that the later law changing the definition of business districts and changing speed limits would operate to render inoperative and ineffective the prior ordinance and resolution. A statute passed by the legislature which is in conflict with a prior ordinance prevails over the ordinance, as well as over any resolution of the highway commission. Harshaw v. Kansas City Public Service Co., 154 Kan. 481, 119 P.2d 459; Pleasant Grove City v. Lindsay, 41 Utah 154, 125 P. 389. Cf. Clayton v. State, 38 Ariz. 135, 297 P. 1037. The legal speed limit in the area was an important question. The judge gave no instruction on this subject except to tell the jury no person shall drive at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. The documents cannot be used to establish a 35-mile speed limit in the business district where this accident occurred. The plaintiff testified he was driving about 30 miles per hour. In effect the jury was told by the admission of these documents that this was a legal rate of speed in accordance with established municipal law and legal action by the highway commission. The jury might well say that whether the 35-mile sign existed, it was reasonable and prudent to drive at not to exceed the 35-mile limit designated in the ordinance and resolution. Their admission was prejudicial to the defendants on the question of contributory negligence.
Since the case must be retried for this error, we will pass upon the other claimed errors for the guidance of the trial court. The defendants asked and the trial court refused two instructions: one proposing to tell the jury that where no special hazards existed the lawful speed in a business or residential district was 25 miles per hour; and the other submitting to the jury the question of fact whether the area was a business district and, if such be the case, that the speed limit was 25 miles per hour. Although the undisputed evidence established that this was a business district, the first instruction was incorrect if there was a 35-mile sign on plaintiff's side of the road between 12th and 13th Streets. It was correct only in the event the sign was not there. Speed highway signs are for the purpose of advising the driving public and a driver is entitled to rely on their authenticity. He cannot be expected nor required to investigate and determine whether such signs are placed there in the regular course of legal procedure. Comfort v. Penner, 166 Wash. 177, 6 P.2d 604; Wood v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 45 Wash.2d 601, 277 P.2d 345, 283 P.2d 688. He has a right to presume it was legally placed. In the event there be any legal irregularity in establishing
such signs, absent other conditions amounting to negligent speed, he cannot be held negligent for having violated the [80 Ariz. 403] speed limit so long as he complied with the requirement of the sign. Wood v. Chicago, Milwaukee, St. Paul & Pacific R. Co., supra; Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777. If there was a sign advising plaintiff that the speed limit was 35 miles per hour, he cannot be held to be negligent merely for driving 30 miles an hour. If there was no sign, the speed limit by statute was 25 miles per hour and driving 30 miles per hour was negligence per se; and if this contributed to the accident, plaintiff could not recover. The instruction submitted to the court did not provide for the existence or nonexistence of the 35-mile speed limit sign and were therefore properly refused.
Defendants suggest that even if the instructions submitted on speed were erroneous, it was the obligation of the court to give a correct instruction. The court did advise the jury that the speed must be such as is prudent under the conditions. This is a correct abstract statement of the law. If the defendants desired a more explicit instruction, it was their obligation to submit a correct one applicable to the possible facts. Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193; Kinman v. Grousky, 46 Ariz. 191, 49 P.2d 624.
The defendants requested an instruction that damages for medical expenses and pain and suffering were not subject to income taxes and that, in the event the jury found for the plaintiff, it could take into consideration this fact in fixing the amount of ...