Allied Van Lines v. Parsons

• Decision Date: 07 February 1956
• Docket Number: No. 5968,5968
• Citation: Allied Van Lines v. Parsons, 80 Ariz. 88, 293 P.2d 430 (Ariz. 1956)
• Parties: ALLIED VAN LINES, Inc., a corporation, Dallas Transfer & Terminal Warehouse Co., a corporation, and Alvin Mack Moore, Appellants, v. Randolph L. PARSONS, Appellee.
• Court: Arizona Supreme Court

Page 430

293 P.2d 430

80 Ariz. 88

ALLIED VAN LINES, Inc., a corporation, Dallas Transfer & Terminal Warehouse Co., a corporation, and Alvin Mack Moore, Appellants, v.Randolph L. PARSONS, Appellee.

No. 5968.

Supreme Court of Arizona.

Feb. 7, 1956.

Rehearing Denied Feb. 28, 1956.

Darnell, Robertson, Holesapple & Spaid, and Richard R. Fish, Tucson, for appellant.

Norman Herring, Tucson, for appellee.

LA PRADE, Chief Justice.

This is an appeal from a judgment for damages in a personal injury action and an order denying defendants' motion for a new trial.Plaintiff, a driver of a Greyhound bus, was injured when a tractor-trailer combination, driven by defendant Moore, employee of defendantDallas Transfer and Terminal Warehouse Co., crossed the center line of State Highway 86 and collided with plaintiff's oncoming bus.Prior to the accident it had been raining and the highway at the point of collision was wet and slick.According to several disinterested witnesses the truck was attempting to pass an automobile in front of it when the bus came around a curve in the road.When the two drivers first sighted each other the truck was in the center of the highway, across the double-striped center line, about six hundred feet from the bus.

Apparently, at the sight of the bus the truck driver Moore attempted to get back into his own lane and 'hit' the foot brakes twice 'easy'.This caused the truck-trailer combination to hit the car in his own lane and immediately thereafter the trailer began to weave back and forth until finally the entire combination crossed the roadway into the lane in front of plaintiff, where the collision resulted.Pertinent facts concerning the injuries sustained by plaintiff will be discussed subsequently in connection with the appropriate assignments of error.

The case was submitted to a jury which found in favor of plaintiff on the issues of negligence and contributory negligence, and awarded damages in the sum of $81,266.

Defendants moved for a new trial on the grounds that (1) there had been irregularities in the proceedings by the trial court; (2) excessive damages had been awarded by the jury; (3) errors of law had been committed by the trial judge in admitting and rejecting evidence, charging the jury and refusing certain instructions requested by defendants; and (4) the verdict decision and judgment were not justified by the evidence and were contrary to law.This motion was denied in its entirety.This appeal contains essentially twelve assignments of error, all of which were the bases for the motion for new trial.

Defendants' first two assignments of error deal with the admission of opinion evidence by four expert witnesses for the plaintiff.Three of these witnesses had been bus drivers for more than eleven years each, and were called for the purpose of showing that plaintiff had not been contributorily negligent in the operation of his bus once he sighted Moore's truck.Each witness testified as to the proper method of slowing a bus like plaintiff's, when crowded with passengers and when the highway was not only curved but wet and slick.There was evidence to show that drivers of such buses undergo specialized training in their operation.Defendants argue that expert opinion is not permitted in this type of situation since the operation of a Greyhound bus and an ordinary automobile with which jurors are presumed to be familiar is not basically different.This contention must fail since we believe that the correct method of operating a large passenger bus equipped with air brakes, suspended on air bellows instead of springs, and which requires special training, is properly the subject of expert testimony.SeeFedler v. Hygelund, 1951, 106 Cal.App.2d 480, 235 P.2d 247, 252, where the court held expert opinion proper in connection with the operation of a heavily loaded truck down a grade.This clearly is a situation where the testimony offered was outside the general or ordinary experience of the average layman.Wigmore on Evidence, Vol. II, Section 559.

Defendants' other point that the witnesses' answers constituted an invasion of the province of the jury is also without merit since each of the above three witnesses confined his answer to the proper method of slowing or stopping a bus in a situation such as plaintiff had found himself when he first saw defendant Moore's tractor-trailer combination crossing the center line of the highway.Though this evidence might have had some influence on the jury in determining whether the plaintiff was contributorily negligent in his operation of the bus, this court has held previously that expert opinion will not be excluded merely because it deals with ultimate facts.Watson v. Southern Pac. Co., 1944, 62 Ariz. 29, 34, 152 P.2d 665.

The fourth witness mentioned above, William Holloway, testified as to the proper method of applying brakes to a truck-trailer combination.Prior to this testimony Holloway had stated that he drove a truck for a living and had been engaged in driving commercial vehicles for approximately twelve years at the time of the trial.No other testimony as to Holloway's qualifications was offered.Defendants argue that there was not sufficient foundation for this testimony; that it was not a proper subject of opinion evidence and that it invaded the province of the jury.As to the last two contentions they have been answered by the preceding paragraphs of this opinion.As to the question of whether a proper foundation was laid for the admission of such evidence it suffices to say it is well-settled law in this jurisdiction that the question of whether an expert witness is competent is a matter that rests in the sound judicial discretion of the trial court.Gila Valley, G. & N. R. Co. v. Lyon, 1905, 9 Ariz. 218, 80 P. 337;Arizona Superior Mining Co. v. Anderson, 1927, 33 Ariz. 64, 262 P. 489;Wigmore on Evidence, Vol. II, Section 561.We do not find such discretion abused here.Parenthetically, it might be added that defendant Moore agreed with Holloway's statement as to the generally accepted method of slowing or stopping the type of combination he was driving that day, and admitted that he had failed to use such method, i. e., to first apply the hand lever which actuates only the trailer brake.This procedure brakes the rear vehicle-pulling it backwards.

Defendants' third assignment of error concerns a portion of plaintiff's instruction No. 8, in which Section66-163f, 1952 Cum.Supp., A.C.A.1939, was read verbatim to the jury.Section 66-163f reads as follows 'No-passing zones.-The commission is hereby authorized to determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof.'

It is defendants' contention that reading this section of the code amounted to a comment on the evidence, which is forbidden by our Constitution, and that such comment might have led the jury to infer that defendant Moore was in fact driving on the wrong side of the highway at the time of the collision, and that the highway was especially hazardous at that spot.The last part of the instruction was to the effect that if the jury should find that defendant Moore had violated the section in question such violation constituted negligence as a matter of law.This part was not objected to.

Both of the above contentions are without merit.Obviously, the portion of the instruction objected to could not have led the jury to infer that defendant Moore was driving on the wrong side of the road.Like any other proper instruction it merely set forth the law applicable to the fact situation as developed by plaintiff's case.

The second point, that the jury could infer that the highway was 'especially hazardous' in the immediate area of the accident, is not persuasive.First, there was only one question for the jury to decide in connection with this part of the instruction, and that was 'Did Moore attempt to pass the car ahead of him in an area where he knew passing was forbidden by law?'Defendant Moore admitted that he had observed the double line and knew that to drive a vehicle to the left of same or to overtake and pass in such area was a violation of law.By such admission the fact that the State Highway Commission had made a determination that this particular area of the highway system was 'especially hazardous' had been withdrawn from the issues of the case.Defendants argue that the words 'especially hazardous' served to raise the standard of care prescribed for defendant Moore, but this is not so since a moment's reflection will show that there was no question of standard of care for the jury as regards this phase of the case.If the above question were answered in the affirmative the jury had to find Moore negligent; the reasonably prudent man test was not applicable here due to the well-settled rule making such a violation negligence per se.Second, we do not agree that this constituted a comment by the trial judge.He merely quoted verbatim a statute giving the State Highway Commission power to determine certain areas of highways 'especially hazardous' for overtaking and passing.It is well-settled administrative law that when an administrative agency has acted pursuant to lawfully delegated authority the results of such action are not subject to collateral attack.42 Am.Jur., Public Administrative Law, Sec. 159;73 C.J.S., Public Administrative Bodies and Procedure, § 112.Here the instant determination of the State Highway Commission was conclusive on all parties to the action.Reading the section in question did not constitute a comment on the evidence.

Defendants' fourth assignment of error...