HOOKER L. CAMPBELL, Appellant,
CLARENCE T. ENGLISH and E. M. JONES, Doing Business as ENGLISH FREIGHT CO., and W. E. IVEY, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and case remanded with instructions.
Messrs. Barry & Boyle and Mr. Mark Wilmer, for Appellant.
Messrs. Struckmeyer & Flynn, for Appellees.
[56 Ariz. 550] LOCKWOOD, C.J.
This is an appeal by Hooker L. Campbell, hereinafter called plaintiff, from an instructed verdict and judgment thereon in a case wherein Clarence T. English and E. M. Jones, doing business as English Freight Co., and W. E. Ivey were defendants. The action was one for personal injuries to plaintiff, which it was alleged were caused by the negligence of defendants. The facts necessary for a determination of the question involved in the appeal are not in dispute and may be stated a follows:
On the night of August 6, 1939, plaintiff was driving an automobile from Phoenix to Buckeye, Arizona. He left Phoenix about 9:45 P.M. and was proceeding in a westerly direction towards Buckeye when he collided with the rear of a truck belonging to defendants English and Jones, which was parked upon the highway without any rear lights. It had been raining intermittently through the evening, and at the time of the accident was still drizzling. Plaintiff was proceeding at about twenty to twenty-five miles per hour and as he approached the scene of the collision another car was approaching from the direction of Buckeye. When this car was approximately
three hundred [56 Ariz. 551] yards away it dimmed its lights and plaintiff did likewise, causing his lights to be deflected downward and to the right. The road at that place was approximately thirty feet in width, including the hard surfaced shoulders of the pavement. Defendants' truck, which was a large one of the general freight type, painted white, was parked on the right hand side of the road as close as possible to the white center line of the highway. It had been so parked for at least fifteen minutes before the collision, and had no lights of any nature on its rear, nor any clearance nor warning lights placed about the rear of the truck, although it did have two headlights burning dimly. When plaintiff was within about twenty-five feet of the truck, he observed it for the first time and attempted to apply his brakes, which were in first-class condition, but was so close he could not stop until the front of his car hit the rear of the truck. Defendant Ivey, who was the driver of the truck, was in its cab but apparently did not know of the collision until the driver of the car approaching from the direction of Buckeye stopped, went back and rapped on the door of the cab. Plaintiff received certain severe injuries as a direct result of the collision, but on this appeal it is not necessary to discuss their nature nor extent. The complaint alleged negligence on the part of defendants in parking their truck on the highway without warning lights, while the answer admitted the employment of defendant Ivey, and the driving of the automobile by plaintiff, but denied the remaining allegations of the complaint.
Upon the trial plaintiff was cross-examined as to the circumstances under which he hit the rear end of the truck, and testified as follows:
"Q. Yes, and you ran into the rear of the truck? A. Yes, sir.
[56 Ariz. 552] "Q. Why? Why didn't you stop? Your lights were shining right on the truck showing in that direction. Please answer the question.
"A. I was too close on to it to stop.
"Mr. Struckmeyer: Q. You had been coming, however, for quite a distance ...