Alabam Freight Lines v. Phoenix Bakery, Inc.

• Decision Date: 25 February 1946
• Docket Number: 4797
• Citation: 64 Ariz. 101,166 P.2d 816
• Parties: ALABAM FREIGHT LINES v. PHOENIX BAKERY, Inc.
• Court: Arizona Supreme Court

166 P.2d 816

64 Ariz. 101

ALABAM FREIGHT LINES v. PHOENIX BAKERY, Inc.

No. 4797

Supreme Court of Arizona

February 25, 1946

Appeal from Superior Court, Maricopa County; Howard C. Speakman Judge.

Reversed and remanded, with instructions.

Theodore G. McKesson and Thomas P. Riordan, both of Phoenix, for appellant.

Snell Strouss & Wilmer, of Phoenix, for appellee.

LaPrade Judge. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, Judge.

Plaintiff-appellant instituted this action in the court below for recovery of damages to its truck in a collision with defendant-appellee's truck. The facts are conceded to be: On August 20, 1943, at about 3 o'clock in the morning, plaintiff's truck with trailer was being driven in a westerly direction over and on the right-hand portion of Highway 70, at a point approximately 30 miles west of Safford where the road, on its westerly course, ascends to and passes through a cut on a hill crest with a left-hand curve. At the same time, defendant's truck with semi-trailer was being driven in an easterly direction along the highway, immediately following another truck and trailer being driven upgrade to the crest of the hill above mentioned. On its easterly course the highway ascends this hill on a moderate grade with a right-hand curve through the cut. A high embankment borders the highway on the north side. A solid or nonpassing white line was painted down the middle of the road from a point considerably west of the hill and over its summit. Defendant's truck driver turned his truck over this white line and attempted to pass the preceding truck on the left. His view of the road was obscured by the curve and the truck which he was attempting to pass. The driver of plaintiff's truck, as he approached the crest of the hill, was proceeding on his proper side of the road in a westerly direction at a speed of 30 to 35 miles per hour, and as he came through the cut at the hill crest he saw defendant's truck in front of him on the northerly side (wrong side) of the road just over the summit, at a distance of not more than 60 feet. The driver of the eastbound truck, which defendant's truck was attempting to pass, upon seeing plaintiff's westbound truck, pulled as far to the south as possible. The driver of defendant's truck slowed down to drop back to the rear of the preceding eastbound truck but was unable to do so before the collision. The driver of plaintiff's truck fully applied his brakes and turned off the road to the right as far as the embankment would allow, but was unable to stop before the trucks collided. At the rate of speed he was traveling, the driver's testimony indicated he could not stop the truck within the range of his vision. The collision between the two trucks occurred well over on the north side of the highway (plaintiff's side), the front wheels of defendant's truck being seven feet northerly of the center line of the road, and the cab portion of plaintiff's truck resting on the north embankment and over a portion of defendant's truck. Both trucks were damaged. Quickly stated, the bald facts are: Each party was driving a big truck with trailer attached approaching the crest of the hill from opposite directions on an S-curve through a cut. When the plaintiff reached the crest and started over the hill on his own side of the road, there the defendant was, in front of him on the wrong side of the road, attempting to pass a slow-moving truck and trailer in front of him, and in a position from which he could not extricate himself. The highway was completely occupied -- plaintiff pulled to his right as far as he could and ran his truck into the side of the cut, but still could not avoid running into defendant's equipment. The situation was graphically put in the words of the driver of the truck that the defendant was attempting to pass. His testimony is as follows:

"Q. * * * What was the furthest point that the Holsum truck (defendant's truck) reached in passing, that is, was it even with the nose of your equipment, the head of your radiator? A. No.

"Q. How far did it get in passing you? A. He was up to the front section of my semi. In other words, the trailer, his radiator was even with some portion of the front section of that trailer. I don't remember just exactly where it was.

"Q. Was the nose -- I believe he has an International, was it? A. That is right.

* * *

" Q. Was the nose of that equipment, that is, the bumper and the radiator even with your cab? A. Not quite.

"Q. It never quite got there. Then when you saw that there was going to be a collision you pulled off as far as you could, is that right? A. That is right.

"Q. And the driver of the Phoenix equipment (defendant's equipment) checked his speed and dropped back some? A. He tried to drop back, yes. He dropped back nearly the length of my semi.

"Q. How were you able to watch that? A. All I had to do was look in the rear-view mirror and watch it. I could see both of them at the same time. The rear-view mirror makes the spot on the other truck coming down the hill, and naturally I was praying that something would happen to take something out of there because there wasn't room in that cut for three rigs.

"Q. It was too narrow? A. Oh, yes. I had done all I could when I seen he was dropping back, and I could not pick any more speed. I had the motor wound up then and pulled to the right as far as I could. That was all I could do. The rest of it was just to stay there and watch it.

"Q. As I understood it, the impact occurred approximately where with respect to your cab? A. Well, in the vicinity of my axles of my trailer wheels.

"Q. Your front axles? A. Back.

"Q. Back. In other words, he had dropped back to about the tail end of your truck? A. That is right." (Emphasis supplied.)

At the close of plaintiff's case, defendant moved for judgment upon the ground that plaintiff's evidence disclosed contributory negligence, and there could be no recovery. This motion was predicated on defendant's statement that it would not offer any evidence with respect to the accident. The case was tried by the court without a jury.

The court made the following findings:

"1.

"2.

"3.

"4.

"5. That the motor vehicle of defendant was then and there operated negligently in that said defendant attempted to drive the same around a motor vehicle proceeding in the same direction as the said motor vehicle was ascending the hill, and at a time when the operator thereof could not see ahead to ascertain if such movement from a direct line of travel could be made in safety; that at the time of the collision hereinafter found, the said equipment of defendant was upon its wrong side of the highway, and that the negligence of the defendant was one of the proximate causes of the collision hereinafter described.

"6. That as the motor vehicle of the plaintiff approached the place of the collision hereinafter described, the operator thereof drove and operated the same negligently in that said motor vehicle was then and there a truck and trailer, which said truck and trailer was then and there operated in excess of the lawful rate of speed of 20 miles per hour, to-wit: was being operated at a speed approximately 35 miles per hour, and in that the operator thereof was driving said motor vehicle at a speed greater than would permit him to bring the same to a stop within the range of his vision ahead.

"7. That if the said plaintiff's motor vehicle and equipment had been operated lawfully and carefully, the operator thereof would have been able to stop the same and avoid the collision hereinafter described; that the negligence of the operator of plaintiff's equipment and the operator of the defendant's equipment contributed to causing the accident and the damages of plaintiff and the damages of defendant; that immediately prior to the collision, hereinafter described, the operator of defendant's equipment had slowed the same and was attempting to return to his lawful side of the highway, and said defendant's equipment would have been back on its lawful side of the highway prior to the collision hereinafter found if said plaintiff's equipment had been then and there operated at a lawful rate of speed."

Conclusions of law were made following the findings of fact, and judgment was rendered for defendant, dismissing plaintiff's cause of action from which plaintiff has appealed.

Defendant earnestly contends that the lower court had ample evidence to support its findings that the proximate cause of the collision was contributed to by plaintiff's speed coupled with the inability to stop the truck within his range of vision, and that, therefore, this court is bound by these findings. Plaintiff has assigned as error the rendering of judgment for defendant "for the reason and upon the ground that the uncontradicted evidence shows that the defendant was guilty of wilful and wanton negligence." His proposition of law in support of this assignment is to the effect that a defendant guilty of willful and wanton negligence cannot avail himself of the plea of contributory negligence except where plaintiff, knowing of defendant's reckless misconduct and the danger involved to him therein, recklessly exposes himself thereto. It is the position of defendant that there was no evidence introduced in the lower court to warrant and justify a finding of willful and wanton negligence on his part. We believe that the bare recitation of the facts emphatically refutes this contention. Defendant's driver was not only guilty of violating the statute relative to overtaking and passing a preceding vehicle, but he did it in a manner demonstrating reckless disregard for the safety of others, knowing or having reason to know that a reasonable man would realize...