Bernhard BELIAK, by his next friend, Jacob Beliak, and Jacob Beliak, individually, Appellants,
Walter Stanton PLANTS, Appellee.
Rehearing Denied June 24, 1958.
[84 Ariz. 213] Snell & Wilmer and Roger W. Perry, Phoenix, for appellants.
Stockton & Karam, Phoenix, for appellee.
This is an appeal from a judgment in favor of appellee Walter Stanton Plants (hereinafter designated as defendant) and against appellants Bernhard Beliak by his next friend, Jacop Beliak, and Jacob Beliak individually. (Beliak will be hereafter designated as plaintiff, and the child, as Bernhard.)
The facts are that Bernhard is the infant son of plaintiff. On May 10, 1954, Bernhard who was then five and one-half years old was seriously injured by an automobile operated by defendant. The parties lived on the same street which was only one block long, unpaved and without curbs or sidewalks. Defendant lived on the west side of the street and Bernhard lived with his mother and plaintiff across the street and a little to the south of defendant's residence. The width of the street is not disclosed. A portion of the street in the center was oiled--width not shown. The shoulder in front of defendant's home was approximately 13 feet wide. There was a 27 foot long trailer parked in front of defendant's home two feet from an oleander hedge on the property line and three to four feet from the oiled part of the street. The front of the trailer was approximately 11 feet north of the north edge of the driveway which ran along the south property line of defendant's property into his carport.
On the morning of the accident defendant was backing his Chevrolet car out of his carport preparatory to driving one block north on said street to Fairmont. As he walked from his house to the car he did not see anything. He testified that he came out of his door and walked around back of his car to the left side, got into the car, started the motor, and backed slowly out. The width of the driveway leading from the carport to the street is not shown, but [84 Ariz. 214] there were verbenas growing along the south side of the driveway and extending a foot or 18 inches out over the driveway. Defendant was watching these flowers as he backed out in order not to run the car over them.
Defendant stopped near the edge of the oiled portion of the street and then proceeded to back up cutting the rear end to the south in order to head the car north toward Fairmont street. When the car was about at the center of the oiled portion of the street and headed northwest, he heard a crash to the rear of the car. He had not seen any children in the street or along either side of the street, either when 'going
out or in.' When defendant heard the crash to the rear of his car, he immediately stopped it and got out and walked around back of the car to investigate. He saw Bernhard running toward home 'hollering' and saw two small boys standing across the street. He noticed a little red wagon under the car. This little wagon had been run over by his car. It was this that made the noise he had heard.
The mother of Bernhard did not permit him to play in the street, but he would occasionally do so when other children came around. On the day of the injury he was given permission to play with a boy who lived across the street, but they were told to play close around in the yard. He had been out of the house only about ten minutes when the injury occurred. There was comparatively little traffic on the street because of its length and because it had a dead end to the south. Other facts will be related in discussing the law of the case.
Bernhard suffered, among other things, a ruptured spleen which had to be removed. Successful surgery was performed the night of the accident. Action was thereafter brought. Verdict and judgment was for defendant. This appeal followed.
In the first assignment of error plaintiff complains of the following instruction:
'You are instructed that the driver of an automobile is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances.'
Plaintiff claims that there is no evidence in the record that Bernhard 'suddenly appeared' in defendant's pathway. We are constrained to agree with this view. No witness saw Bernhard from the time he was permitted by his mother to play close in the yard and until defendant got out of his car when he heard the crash to the rear thereof and saw Bernhard running toward is home 'hollering' after he had been injured by defendant's car.
The testimony of defendant clearly shows that the first time he looked to see whether the street was clear was after he had backed his car out to the edge of the street and stopped. He then looked to the [84 Ariz. 215] north and to the south for traffic and saw nothing whatever in the street. He did not see anybody any place in either direction. He then looked through the mirror above his windshield and saw nothing except that when he had backed a foot or two he saw 'a little flash right down to the bottom of the window and I thought it was a bird just flipped past the rear.' He testified that he thought it was across the street in Mrs. Zimmerman's yard. His car was equipped with an outside rear view mirror on the left side, but he did not use this mirror to see if there was anything immediately behind his car. The evidence does not show that he looked through the mirror above the windshield after he began to back into the center of the street in a southeasterly direction. Neither does it show that he at anytime leaned out of the window to determine if anyone had 'suddenly appeared' in his pathway. There is nothing in the evidence to show how or when Bernhard got to the point where he was struck by defendant's car. He could have been back of the car all of the time. If he was, use of the outside mirror might or might not have revealed his presence when the car was cut to the south. We do not wish to be understood as holding that it was defendant's duty to do all or any of these things and that his failure to do them made him guilty of negligence. That is a question for the jury. What we are saying, however, is that the record ...