[91 Ariz. 81] Hughes & Hughes, and Robert G. Mooreman, Phoenix, for appellants.
Moore & Romley, Phoenix, for appellee.
PORTER MURRY, Judge.
This is an appeal by the plaintiffs, Charles and Della Miller, husband and wife, from a judgment of the lower court entered upon a jury verdict denying them damages for the alleged negligence of defendant George F. Cook Construction Co. and from the denial of their motion for a new trial. The questions presented for our determination are: 1) the propriety of giving instructions on assumption of risk, 2) the correctness of the instruction given on assumption of risk, and 3) the correctness of various evidence rulings made by the trial court.
On November 9, 1955 about 10:00 a. m. plaintiff Della Miller walked to a corner grocery store in Scottsdale, Arizona, in search of her 4 year old son who had wandered away from plaintiff's place of buiness. Upon locating him she stood on the walk in front of the grocery store and talked to the owner before turning to go back to her place of business. Defendant Construction Co. was at this time trenching Scottsdale Road in order to place a clay conduit pipe for telephone cables and had dug a trench four to five feet deep and twenty to twenty-four inches wide. Walking back to her place of business along a path commonly used by people in the area, plaintiff 'flipped in the dirt and went into the hole.' As a result of the fall plaintiff sustained various injuries and required medical care.
In support of their contention that the lower court committed error by instructing
the jury on assumption of risk, plaintiffs cite a number of cases in which such an [91 Ariz. 82] instruction was held to be error.  However in each of these cases the court held as a matter of law that assumption of risk did not apply to the facts before it since the dangers were obscure and unknown and could not be observed or appreciated under the conditions existing in the given case. Thus although there exists some difficulty in distinguishing assumption of risk from contributory negligence, the chief difficulty lies in applying the doctrine to the particular case under discussion. In order to determine whether the evidence in the instant case supports an instruction on assumption of risk, we must go more fully into the testimony adduced at the trial.
Plaintiff Charles Miller testified that the trench ran from north to south just west of Scottsdale Road and east of a private property line. The trench commenced north of his place of business, how far he did not know, and ran sought past his place, and past a fence to the grocery store south of the fence. There was pipe piled along the fence, between the latter and the ditch. There was approximately two feet between the ditch and the piled pipe along the fence that paralleled the ditch.
Plaintiff Della Miller testified that she saw the ditch being dug in its entirety. She knew that the ditch was there; she saw the dirt piled up beside the ditch. After the ditch was dug past the fence sought of the plaintiff's place of business, she went south to the grocery store passing in the space between the board fence and the ditch. Then when returning from the grocery store, plaintiff took the same route, and along with her son fell into the ditch. Plaintiff testified that prior to her fall a man with a shovel, in the trench, was throwing loose dirt and old pieces of pipe on the walkway by the fence and that the dirt on the walkway between the fence and the trench was just like spilled sugar. There was nothing placed alongside the trench to assist passersby or to keep them from falling into the trench.
A Mr. Rekeland testified that on the day of the incident digging commenced about fifty feet north of plaintiff's place of business and worked toward the south, and the trench dug the previous day had already been filled in.
In order to invoke the doctrine of assumed or incurred risk there must be either a risk or danger which the plaintiff knows of or appreciates, or the danger must be so obvious that the plaintiff will be presumed to have known and comprehended it. In the case of Lunsford v. Tucson Aviation Corp., 73 Ariz. 277, 240 [91 Ariz. 83] P.2d 545, a student pilot was injured when a training plane crashed during take off. We recognized the assumption of risk doctrine and held that the student pilot could not assume the risk of a down draft which caused the crash and therefore an instruction on assumption of risk was erroneously given. Therein, quoting with approval from 65 C.J.S. Negligence § 174, we said:
"* * * in order to invoke the doctrine of assumed or incurred risk, it is essential that the risk or danger shall have been known to, and appreciated by, plaintiff or that it shall have been so obvious that he must be taken to have known and comprehended it. * * * he does not assume obscure and unknown risks, which are not naturally incident thereto and which, in the existing conditions, would not be reasonably observed and appreciated; * * *."
Prosser, Law of Torts 310 (2nd ed. 1955) says:
'* * * it is evident that in all such cases an ...