Sawyer v. People's Freight Lines, Inc., Civil 3250

• Decision Date: 20 June 1933
• Docket Number: Civil 3250
• Citation: 42 Ariz. 145,22 P.2d 1080
• Parties: EDITH T. SAWYER, Administratrix of the Estate of THOMAS S. SAWYER, Deceased, Appellant, v. PEOPLE'S FREIGHT LINES, INC., and WILLARD THOMPSON, Appellees
• Court: Arizona Supreme Court

22 P.2d 1080

42 Ariz. 145

EDITH T. SAWYER, Administratrix of the Estate of THOMAS S. SAWYER, Deceased, Appellant, v. PEOPLE'S FREIGHT LINES, INC., and WILLARD THOMPSON, Appellees

Civil No. 3250

Supreme Court of Arizona

June 20, 1933

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Conner & Jones and Mr. H. O. Juliani, for Appellant.

Messrs Kingan, Darnell & Nave, for Appellees.

OPINION

ROSS, C. J.

This action is prosecuted against People's Freight Lines Inc., and Willard Thompson, driver, for damages to the estate of Thomas S. Sawyer, alleged to have been caused by the defendants negligently killing said Sawyer in an accident on the Tucson-Florence-Phoenix public highway on July 1, 1931. The complaint alleges that Sawyer died on said day at about three o'clock in the afternoon "by the wrongful act, and neglect, and default of the defendants, which wrongful act and neglect" are described (we give the substance only) as follows: That said decedent was traveling on horseback on said highway, in an easterly direction, and when about three-quarters of a mile west of Midway Station, "where said road runs through a slightly depressed land," he crossed it from the south to the north with caution and care; "that upon reaching a point off the highway about seven feet from the north edge thereof, the decedent and horse were . . . violently struck and thrown to the ground, off the highway as aforesaid by a (defendant's People's Freight Lines, Inc.,) heavy freight motor truck with trailer which was going toward Florence in a westerly direction," killing decedent and the horse.

Defendant's answer consists of general demurrer and a general denial.

The only eye-witness to the accident was defendant Thompson, who was the driver of the truck. The testimony of this witness, and that of others who immediately after the accident examined the ground, disclosed the following facts: The truck, weighing ten or twelve tons, with a two-ton load, was proceeding west on its way from Tucson to Phoenix and had just ascended a slight rise, and its apex near there, the driver, Thompson, saw decedent approaching on horseback from the opposite direction. At the time each was on his side of the road, which at this point curved slightly to the left. Decedent was on his way to visit a neighbor, who lived on the north side of the road, and evidently undertook to cross to that side. The tracks of the horse show this. They were traced for about 150 feet on the south side of the road going east to a point at or near where the accident occurred, where the tracks suddenly changed to a direction across the road to the north side. From 25 to 50 feet east of this point, as shown by the marks, the brakes on the truck were applied and were not released thereafter. According to Thompson's testimony and the tracks made by the truck, the latter was all the time on the right side of the road, traveling from 10 to 15 miles per hour, and decedent was on the opposite side cantering or loping until just before the accident; that while each was proceeding thus, decedent's horse suddenly turned to cross to the north, and Thompson, in his effort to avoid running into decedent, applied the brakes and swerved to the right and struck or collided with the decedent at the north side of the road, or just off that side.

The complaint charges general negligence only, on the theory that the facts bring the case within the maxim res ipsa loquitur. The court was of the opinion that the rule was applicable and gave instructions accordingly. The jury returned a verdict for defendants, and plaintiff has appealed.

She now claims that the instructions on the doctrine of res ipsa loquitur were incorrect, ambiguous, contradictory, etc. We agree that if the principle of the doctrine of res ipsa loquitur applies the instructions were erroneous, but are firmly of the opinion such doctrine does not apply to the facts of this case.

We think it may be stated that the universal rule is that a party who claims damages for an injury cannot rest upon the mere showing of such injury. The must go further and establish by a preponderance of the evidence the negligence on the part of the defendant which caused such injury. In some cases the maxim res ipsa loquitur, which is a rule of evidence only, steps in and supplies sufficient proof of negligence to require the defendant to show that it was not through his fault that plaintiff was injured. Such cases arise: "Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation or defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions so that the occurrence of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence." 45 C.J. 1193, § 768. If the elemental facts enumerated in this rule are...