A. P. THOMPSON, Appellant,
Harry A. QUANDT and Crystal Standley Quandt, his wife, Appellees.
[83 Ariz. 344] Herbert B. Finn, Stephen S. Gorey and Charles Hardy, Phoenix, for appellant.
Walter Linton, Phoenix, for appellees.
The appellant, A. P. Thompson, sued appellees, Harry A. Quandt and wife, for personal injuries alleged to have resulted from the negligent operation of an automobile. The parties will be designated as they appeared in the trial court. From verdict and judgment for the defendants plaintiff appeals.
The accident occurred at the intersection of East Van Buren running east and west and North First Street going north and south in Phoenix. Van Buren has three eastbound and three westbound lanes. Defendants were proceeding east on Van Buren in the north eastbound lane and signalling
for a left turn to go north on First Street. They were approaching a car going west signalling a left turn to the south. This car signalled defendants to make their turn in front of him which defendants did. Plaintiff was crossing First Street from east to west in the pedestrian crosswalk [83 Ariz. 345] and was struck by defendants' car. There was testimony from which the jury could have found that when defendants attempted the negotiation of their turn Van Buren Street was clear of westbound traffic which would permit the turn; that when defendants turned into the westbound traffic lanes, another car came from behind the car which intended to turn south and which had signalled defendants to make their turn north, creating a situation whereby it became necessary to avoid a collision of the two cars; that defendants accelerated their speed and plaintiff was struck. Defendant-driver testified that when he started his turn, the pedestrian walk was clear but the car which changed lanes obstructed his view and he did not see plaintiff until he was within three feet of him. There was also evidence that plaintiff was walking fast, looking to his rear for possible westbound traffic that might turn north but did not look to the center for eastbound traffic that might turn north.
The court instructed the jury as to the standard of care required of one when presented with a sudden emergency. Plaintiff does not question the correctness of the instruction if justified from the evidence but claims there was no fact situation which warranted giving the same. It is argued that defendants were negligent in turning into the path of an oncoming car and ar not entitled to the benefit of a sudden emergency instruction when the emergency was created by their own fault. The instruction required that the emergency be created without defendants' fault before it was applicable. Whether the instruction was properly given depends upon whether the jury was entitled under the circumstances to determine defendants were not negligent in making the turn as heretofore related. We think the jury could so find. Section 66-164g, 1952 Supp., A.C.A.1939 (now A.R.S. § 28-772) provides that a driver intending to turn to the left shall yield the right of way to vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard and all other approaching vehicles shall yield the right of way to the vehicle making the turn. The jury could have determined that there was no approaching vehicle that constituted an immediate hazard. If such be a fact, there was no negligence in making the turn. If the road was clear and a reasonably prudent person would not anticipate that a car would come from behind the car waiting to go south and thereby block his passage, he was not negligent. If there was no negligence in turning, the emergency was not the fruit of his own fault. The instruction was properly given.
The trial court gave an instruction on contributory negligence. Exception is taken to this upon the ground there is no evidence that could be a legitimate basis for the instruction. Relative to this [83 Ariz. 346] question was an instruction which told the jury that pedestrians had the right of way but that such was not exclusive and that in exercising such right of way pedestrians must use reasonable care and caution to protect themselves from danger. Unquestionably, a pedestrian lawfully crossing an intersection has the right of way over vehicles. Section 66-153g, 1952 Supp., A.C.A.1939 (now A.R.S. § 28-645). This does not mean that pedestrians are free from the obligation to use reasonable care under the circumstances. The statute does not permit one to proceed in total disregard of traffic conditions when reasonable care would enable him to observe and avoid an accident. The plaintiff proceeded across the intersection without attempting to observe whether any vehicle was approaching from the center of the intersection. Unquestionably, the jury was entitled to find that he was negligent and that such conduct contributed to the accident. Grass v. Ake, 154 Ohio St. 84, 93 N.E.2d 590. The identical instruction to the effect that
the right of way which a pedestrian enjoys is not exclusive was approved in Knight v. Pang, 32 Wash.2d 217, 201 P.2d 198. All the instruction means is that having the right of way does not exclude the necessity of one using reasonable care for his own protection under the circumstances then and there existing.
The trial judge, in denying plaintiff's motion for a new trial, expressed the opinion that if he had been trying the case he would have decided it differently. Plaintiff contends that being of such a view the judge abused his discretion in not granting a new trial. There is no merit to such a proposition. The trial judge may weigh the evidence and in the exercise of a sound discretion grant or deny a new trial. General Petroleum Corporation v. Barker, 77 Ariz. 235, 269 P.2d 729. He is not compelled, however, to grant a new trial merely because he disagrees with the result. Kincaid v. Walla Walla Valley Traction Co., 57 Wash. 334, 106 P. 918. It is entirely possible that the trial judge might believe the jurors in a given case arrived at a more just verdict than he could.
The judgment is affirmed.
UDALL, C. J., and STRUCKMEYER and JOHNSON, JJ., concur.
PHELPS, Justice (dissenting).
I feel constrained to dissent in this case upon two grounds. First, because I believe it constituted reversible error for the court to give an instruction on an emergency for the reason that defendant Quandt created the emergency by his own negligence. He had no right to rely upon a signal to cross the westbound traffic lanes given him by the driver of the car about to turn south on First Street. Consequently, it was his duty under such circumstances to know two things with reasonable[83 Ariz. 347] certainty: first, that he could proceed to the north across westbound traffic on Van Buren Street without danger of collision with a westbound car, and second, that the crosswalk for pedestrians ...