Rehearing Denied June 13, 1961.
[89 Ariz. 323] Cavanagh & O'Connor, Phoenix, for appellant and cross-appellee.
Langerman & Begam, Phoenix, for appellee and cross-appellants.
Eli Albert, his wife Rose Albert and minor daughter Doraley Albert, brought an action against Martha Reichardt in the trial court to recover damages for injuries sustained in an automobile accident. The parties will be designated as they appeared in the trial court. The jury returned a verdict in favor of defendant. Plaintiffs' motion for judgment notwithstanding the verdict was denied but the court granted their motion for a new trial on the ground that the court erred in giving defendant's requested instruction No. 5. Defendant appealed from the order granting a new trial and plaintiffs cross-appealed from the order denying their motion for judgment notwithstanding the verdict.
Defendant was proceeding west on Palm Lane in Phoenix at a speed 15 to 20 miles per hour. As she approached the point where she intended to turn left into the Central Methodist Church parking lot, she slackened her speed to about 5 to 10 miles [89 Ariz. 324] per hour. Several cars in front of defendant had been turning into the church parking lot and defendant assumed that a car which she had casually noticed following behind her was also going to turn into the lot. Defendant gave no signal of her intention to make the left turn. Defendant testified that as she started to turn across the center of the street she noticed the car behind coming up on her left side. At this point defendant hit the brakes, turned back to the right and believed that she stopped immediately. Plaintiffs' vehicle sideswiped the left side of defendant's car and caromed off into a pole on the south side of Palm Lane.
Plaintiffs were following defendant at a speed not to exceed 25 miles per hour when they noticed the slowing down of defendant's vehicle. Whereas defendant's testimony indicated that defendant was traveling near the center of the street when the attempted left turn was executed, plaintiffs testified that defendant's vehicle was more to the far right side of the street and apparently turning to the right when it suddenly cut left across plaintiffs' path. In response to the officer's inquiry at the scene of the accident, plaintiff Rose Albert, estimated her speed before impact to be 15 to 20 miles per hour. However, later testimony indicated that the speed was 10 to 15 miles per hour.
Plaintiff Rose Albert, stated in a deposition taken prior to trial that her foot was on the brake prior to the impact. However, at the trial she testified that at no time was her foot on the brake.
The disputed Isntruction No. 5 reads as follows:
'You are further instructed under Section 28-701 A and E as modified to meet the circumstances in this case that the laws of the State of Arizona
provide that no person shall drive a vehicle on the highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any vehicle on the highway in compliance with legal requirements and the duty of all persons to use due care.
'The driver of every vehicle shall, consistent with the requirements set forth above, drive at an appropriate reduced speed when special hazards exist with respect to other traffic.
'I charge you by these instructions that a violation of the foregoing statutory provisions constitutes negligence as a matter of law. Therefore, if you find from the evidence that the plaintiff, Rose Albert, violated these provisions, then that would constitute negligence on her part; and if you further find that such negligence, if any, proximately[89 Ariz. 325] contributed in the slightest degree to the accident, then your verdict should be for the defendant, Martha Reichardt, and against the plaintiffs, Eli and Rose Albert.'
Defendant's Instruction No. 5 consisted of the 'reasonable man' standard of care as enacted in subsections A and E of Section 28-701, A.R.S. and included the charge that the violation thereof constituted negligence as a matter of law. We discussed such a situation in the case of Wolfe v. Ornelas, 84 Ariz. 115, 119, 324 P.2d 999, 1001, and there held:
'* * * A failure to reduce speed when conditions require is not merely prima facie evidence of ...