Gladys Golden MICHIE, Personal Representative of the Estate of Charles Glenn Golden, Appellant,
J. W. CALHOUN and John C. Calhoun, copartners, dba Calhoun Bros. Livestock Transportation Co. and F. E. Gilbert, Appellees. Gladys Golden MICHIE, Personal Representative of the Estate of Kenneth Golden, Appellant,
J. W. CALHOUN and John C. Calhoun, copartners, dba Calhoun Bros. Livestock Transportation Co. and F. E. Gilbert, Appellees.
[85 Ariz. 271] Thompson & Willey, Phoenix, for appellant.
Snell & Wilmer and Roger W. Perry, Phoenix, for appellees.
These are wrongful death actions, consolidated for trial, for the death of the plaintiff's husband and son in a tragic automobile accident on February 22, 1953. The plaintiff's version of the accident was that the truck owned by the defendants Calhoun, partners, was negligently driven with glaring lights by their employee, defendant Gilbert, blinding the plaintiff's husband, who was driving the vehicle in which the plaintiff and her son were passengers, and causing him to brake his vehicle and skid [85 Ariz. 272] into the path of the oncoming truck. Defendants' evidence was that Gilbert had driven with lights at low beam and, centering on the incontrovertible fact that the accident occurred on the truck's side of the highway, suggested that the husband's own negligence in driving was the sole and proximate, or contributory, cause of the accident. Under instructions which plaintiff here seeks to have reviewed, the jury returned a verdict for defendants in both actions.
The challenged instruction bearing on the contributory negligence issue was as follows:
'In the event you should find by a preponderance of the evidence that the deceased, Mr. Golden observed the truck with glaring lights approaching, if such you find, and if you further find that said Mr. Golden continued to drive at a speed which prevented his stopping within an assured clear distance ahead then you are instructed that he was negligent as a matter of law.
'If you further find that said negligence was a proximate cause of the collision then you are instructed it is your duty to return a verdict in favor of the defendants.' (Defendants' requested instruction No. 2.)
It also is urged as error that the court rejected plaintiff's requested instruction No. 9 and, instead, gave defendants' requested instruction No. 13. Plaintiff's requested instruction was as follows:
'Involved in this action and for your consideration are two distinct claims, a claim for damage to the estate of the child, Kenneth Golden, and a claim for damage to the estate of the father, Charles Glenn Golden. Because these are separate claims, you must give attention to certain distinctions in considerating the defense of contributory negligence.
'Even if it should appear to you from the evidence in this case that there was negligence on the part of Charles Glenn Golden, such negligence, if any, may not be imputed to the son, Kenneth Golden, and shall not constitute a bar to recovery by his estate if otherwise it is entitled to recover.'
Defendants' requested instruction, as given, was as follows:
'You are instructed that if you find by a preponderance of the evidence that the deceased, Charles Golden was negligent and that such negligence was a proximate cause of the accident, then it is your duty to return a verdict for the defendants in both of the actions herein for under the circumstances shown the law imputes the negligence of the deceased, Charles Golden to the [85 Ariz. 273] plaintiff in both actions.' (Defendants' requested instruction No. 13.)
For the reasons hereinafter stated, in the circumstances of this case, we think the above-quoted instructions given were erroneous and fundamentally prejudiced the verdict.
The instruction concerning the husband's alleged contributory negligence constitutes a version of the 'range of vision' rule still followed in some jurisdictions. This court, after careful consideration of such a rule and its implications, rejected it is wanting in reason as revealed by the test of variant cases calling for its application. In Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 115-116, 166 P.2d 816, 824, we said:
'* * * The rule if treated as absolute in all its implications would result in more harm than good. To prevent gross injustice in many circumstances would require the continual recognition of exceptional situations within the rule as heretofore stated. Each case must be considered in the light of its own peculiar state of facts and circumstances. We believe the just test to be: What would ...