Rehearing Denied Sept. 25, 1956.
[81 Ariz. 96] Darnell, Holesapple & Spaid, and Richard C. Briney, Tucson, for appellants.
Norman Herring, Tucson, for appellee.
[81 Ariz. 97] LA PRADE, Chief Justice.
Plaintiff, Helen Manley, was injured as a result of a collision between her automobile and one being driven by defendant Joan Hirsh at the intersection of Plumer Avenue and Helen Street, in Tucson, Arizona. The vehicle driven by Joan Hirsh was owned by her father, defendant David Hirsh. From a judgment in favor of plaintiff and an order denying defendants' motion for a new trial defendants have appealed.
Considering the evidence below in support of the judgment in its most favorable light it appears that plaintiff was operating her car in an easterly direction on Helen Street while defendant Joan Hirsh was driving south on Plumer Avenue. As the two cars approached the intersection plaintiff was to the right of defendant. The day was fair and sunny. The exhibits and the testimony show that the northwest corner, i. e., the corner between the approaching cars was open and to approaching motorists an unobstructed view was presented. There were no traffic controls at the intersection.
Plaintiff testified that she was traveling at a speed between twenty and twenty-five miles per hour and was approximately seventy-five feet from the corner when she first saw the car of defendant; the Hirsh girl and driving about thirty-five miles per hour in plaintiff's opinion, and was about one hundred and ten feet from the intersection; plaintiff kept watching the other car and could see that Joan Hirsh and her companion were laughing and talking; plaintiff, realizing that Joan Hirsh had not yet seen her, 'slammed on' her brakes. Testimony of a police officer who arrived at the scene of the accident after it had occurred estimated that plaintiff's car had skidded thirty-nine feet after the brakes were applied, ending up six feet past the western boundary of Plumer Avenue. An expert witness in connection with speeds as determined from skid marks stated that under the circumstances of this case a car such as plaintiff's would have skidded between thirty and forty feet at a speed of twenty-five miles per hour. This evidence was based on the premise that plaintiff's car had stopped prior to the collision. The police officers could not testify one way or the other as to that fact, but Mrs. Manley stated that she had brought her car to a complete stop just before Joan Hirsh ran into her. The aforementioned police officer testified that no skid marks were laid down by defendant's car.
Plaintiff, a fifty-two year old woman at the time of the accident, received bruises, abrasions and contusions requiring medical attention. For the greater part of the twenty-two months between the collision and the trial plaintiff was forced to sleep on a board and wear a surgical brace. She walked with a limp at the time of the trial. Plaintiff's testimony as to her [81 Ariz. 98] good physical condition and active life before the accident and the change for the worse thereafter was corroborated by
several witnesses. At the trial plaintiff complained of pain in her left side, stating that she no longer could lift children and that as a result her 'baby-sitting' jobs had been severely restricted. Plaintiff's doctor testified that in the first examination after the accident he found a large black and blue area over her left buttock, extending up the left side to the chest and left side of breast. Plaintiff complained of pain in her left shoulder, back and cervical spine. There were no broken bones. The doctor stated that it was possible that the pain might end within a year or last for the rest of her life. He said he thought any decrease in pain would be gradual in view of her prior condition of arthritis or neuritis.
The trial court submitted the issues of negligence, contributory negligence, and last clear chance to a jury, which found in favor of plaintiff and awarded damages in the sum of $11,250.
Defendants moved for a new trial on the grounds of excessive damages, that the verdict and judgment were not justified by the evidence and were contrary to law, and that the trial court had erred in giving certain instructions and refusing others. This motion was denied. The appeal before this court contains essentially seven assignments of error which fall into five separate categories.
Taking the question of liability first we are confronted with defendants' second and third assignments of error dealing with the doctrine of last clear chance as defined by the court. Defendants contend that the doctrine was inapplicable to the facts of the case and that the instruction should not have been given. The argument is also made that the instruction itself misstated the doctrine in failing to advise the jury of the need to find defendant Joan Hirsh guilty of subsequent negligence. Since the jury was presented with two possible situations in which defendants could have been found liable, negligence solely on the part of Joan Hirsh, or negligence on the part of plaintiff, plus subsequent negligence on the part of Joan Hirsh at a point in time when she still had the last clear opportunity to avoid the accident, it becomes necessary to see if the doctrine of last clear chance was applicable, and if so, whether the instruction correctly stated the law. The doctrine of last clear chance as defined in the Restatement, Torts, Section 479, has been quoted with approval by this court on more than one occasion, Casey v. Marshall, 1946, 64 Ariz. 232, 168 P.2d 240; Trauscht v. Lamb, 1954, 77 Ariz. 276, 270 P.2d 1071; and, briefly stated, this doctrine permits a plaintiff to recover, even though negligent, if he finds himself in a situation where he is [81 Ariz. 99] unable to avoid the accident, and the defendant knows of plaintiff's plight or would have discovered it if he had exercised the proper vigilance toward plaintiff, and thereafter fails to take the necessary steps to avoid harming the plaintiff. In general, the courts to not find the enunciation of this doctrine difficult, but unfortunately this cannot be said of its application. The biggest problem for both the trial and appellate courts necessarily arises in attempting to determine whether the negligent acts of both parties concur as proximate cause. If so, then clearly defendant cannot be guilty of having had the last clear opportunity to avoid the accident. On the other hand if plaintiff's negligence has placed him in a position from which he no longer can extricate himself and defendant knows or should have known this fact and still fails to avail himself of that last clear chance available to him to avoid the accident, then obviously he is liable under the doctrine. What do the facts before us, construed favorably to plaintiff, show? First, that plaintiff first sighted defendant when the cars were seventy-five and one hundred ten feet, respectively, from the corner; second, that if plaintiff saw defendant then obviously defendant could have and should have seen plaintiff; third, that under the law of Arizona, when two vehicles are approaching an intersection from different streets at approximately the same time, the car on the left must yield the right of way
to the car on the right, Section 66-164f, 1952 Cum.Supp., A.C.A.1939 (A.R.S. § 28-771); fourth, that when the two cars first came within sight of each other they were approaching the corner at approximately the same time and, therefore, it was defendant's statutory duty to yield to plaintiff; that plaintiff watched defendant momentarily to see if defendant was going to slow down or stop so that plaintiff could go through; that plaintiff, seeing defendant take no such action, 'slammed on' the brakes and skidded thirty-nine feet into the intersection; that defendant's car left no skid marks whatsoever, indicating that she never applied the brakes with any force; that defendant's car struck plaintiff's twenty feet south of the northerly line of Helen Street at a point six feet east of the westerly line of Plumer Avenue; and that it could reasonably have been inferred by the jury that plaintiff's car would have reached the intersection before defendant's car had plaintiff not applied her brakes as vigorously as she did. The jury could well have inferred that if Joan Hirsh had been attentive to her driving, she would have seen plaintiff, after plaintiff negligently got into a position of peril from which she could not extricate herself, in time to have thereafter by the exercise of reasonable care avoided the accident.
Defendants argue that the question of Joan Hirsh's subsequent negligence was not submitted to the jury, but we cannot agree [81 Ariz. 100] with this contention. Although the instruction covering the last clear chance doctrine was not artfully drawn it fairly states the law and the jury was apprised of the elements ...