Arizona State Highway Dept. v. Bechtold

• Decision Date: 23 October 1969
• Docket Number: No. 9651,9651
• Citation: 105 Ariz. 125,460 P.2d 179
• Parties: ARIZONA STATE HIGHWAY DEPARTMENT, an agency of the State of Arizona, Appellant, v. August W. BECHTOLD and Jean M. Bechtold, his wife, Appellees.
• Court: Arizona Supreme Court

Page 179

460 P.2d 179

105 Ariz. 125

ARIZONA STATE HIGHWAY DEPARTMENT, an agency of the State of Arizona, Appellant, v. August W. BECHTOLD and Jean M. Bechtold, his wife, Appellees.

No. 9651.

Supreme Court of Arizona, In Division.

Oct. 23, 1969.

Rehearing Denied Dec. 9, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., Rod McDougall, Asst. Atty. Gen., Phoenix, for appellant.

Cunningham & Tiffany, by Michael E. Tiffany, Phoenix, for appellees.

LOCKWOOD, Vice Chief Justice.

This action arose out of a traffic collision between August W. Bechtold, (appellee) and Lawrence J. Kulik at the intersection of McDowell Road and the Black Canyon Freeway access road in Phoenix, Arizona. The collision occurred as a result of a faulty traffic signal which gave a green indication to both appellee and Kulik. Although Kulik, his parents, the City of Phoenix and the Arizona State Highway Department were originally joined as defendants, the action was dismissed as to the others and proceeded to trial by jury only against the Arizona State Highway Department (appellant). The jury returned a verdict in favor of appellee in the amount of $5,000. This verdict was subsequently reduced to $3,650 and judgment was entered on the verdict. From an order denying defendant's motion for judgment notwithstanding the verdict and in the alternative motion for a new trial, Arizona State Highway Department appeals.

The facts as presented at the trial are as follows: On July 2, 1963, sometime after 10:30 P.M., appellee was returning home from work. He entered the eastern access road of Black Canyon Freeway about five blocks south of McDowell Road, traveling north toward the intersection. As he approached the intersection, he observed that the traffic light controlling his direction of travel changed from red to green. He entered the intersection without stopping and the left side of his truck was struck by an eastbound automobile driven by Lawrence J. Kulik. As a result of this collision appellee's panel truck was demolished and he sustained multiple cuts and bruises.

At trial, evidence showed that at the time of the collision the traffic control signal was indicating green both for the northbound traffic on the eastern access road, the direction in which appellee was traveling, and for the eastbound traffic on McDowell crossing the access road, the direction in which Kulik was traveling. The evidence also showed that in addition to the accident giving rise to this case, there had been two other traffic accidents at this intersection earlier that same day.

At some time prior to 4:30 P.M., some six hours prior to appellee's accident, the first accident occurred at this intersection. Following the first accident the Phoenix City Police Department notified the Arizona State Highway Department of a malfunction in the traffic light. Vern Larson, a repairman employed by appellant, responded to the call and upon arriving at the intersection discovered that there was a flickering green light for the eastbound traffic on McDowell Road. The flickering light indicated to Larson that the malfunction was in an SR--4 relay located in the control box to the signal. This relay regulated the phase of the control signal--red, amber or green--and when one malfunctioned it was merely unplugged and a new one inserted. Larson replaced the SR--4 for the flickering signal and noted that the flickering ceased. He then visually checked the timing controllers in the control box for malfunction, visually checked the repaired light and then drove through the intersection from all directions to see if the other lights were working properly.

Although Larson had no formal education in electronics, he had taken a correspondence course and had had on-the-job training. He testified that at the time he replaced the SR--4 relay he had with him a voltmeter, an ohmmeter and an ammeter, which could have been used to more thoroughly check the control box. However, it was not department policy to do so, and therefore he did not use them. He considered the repair completed and left the area by 5:45 P.M.

Later in the evening of July 2, 1963, there was a second accident at this intersection. Although there is little information in the record regarding this accident, it appears that it also was the result of a malfunctioning traffic signal. The accident was investigated by the Phoenix Police Department, but the fact of the malfunctioning light did not come to appellant's attention until an insurance claim against the State was made several weeks later. Then, in a letter from Hornbeck, Signal Technician, to Thompson, Traffic Civil Engineer, Hornbeck stated that the vehicular collision which occurred some two or three hours prior to the Bechtold accident '* * * was caused presumably by malfunctioning traffic signals.' This letter was admitted in evidence over appellant's objection.

Following the collision involving appellee, at about 11:00 P.M. on July 2, 1963, the State Highway Patrol reported to Hornbeck, who was on call at the time, that there was no red indication for northbound traffic on the Black Canyon access road. Hornbeck found the malfunction was caused by a second faulty SR--4 relay and replaced it, as Larson had done earlier in the day. This corrected the trouble. Hornbeck visually checked the lights and timers at the intersection and completed the call by 11:20 P.M.

Approximately eighteen months prior to these events, in January 1962, the controls at this intersection had been completely revamped and the clock-like mechanical timers which controlled the duration of the signals replaced with a complicated electronic computer-type control. This system detected the traffic flow from all directions through the intersection via rubber treadles in the road surface, and automatically adjusted the red and green signal duration for optimum traffic flow. An integral part of this control system are the SR--4 relays, two of which malfunctioned and were replaced on July 2, 1963.

At no time since these controls were revamped in January of 1962 had they been replaced, repaired or even checked except when a malfunction was reported. On July 2, 1963, neither Larson nor Hornbeck did more than replace the then malfunctioning part and visually check the lights and timing, even though they had with them instruments which could have been used to more thoroughly check the control box. The record showed that at no time prior to this accident did the appellant have in effect any type of preventive maintenance program in regard to traffic control systems. Evidence as to a subsequently initiated maintenance program was excluded by the trial judge.

In this appeal, appellant presents four questions for review. We will consider appellant's question number three first. Here, appellant asks whether it is reversible error for a trial judge to admit evidence which was outside the issues as formed in the pre-trial order.

The pre-trial order, entered September 16, 1966, stated that appellee claimed negligence '* * * based on (appellant's) Failure to repair a defective traffic light after they had notice that it was defective because of an accident earlier that evening.' (Emphasis supplied.) The evidence complained of showed that prior to appellee's accident, appellant had no program of preventive maintenance for traffic signals under its control.

Although at first blush it might appear that such evidence would be outside the pre-trial order, under the circumstances in this case we believe that it was within the discretion of the trial judge to admit or exclude it during the trial.

The admitted purpose of the pre-trial order is to simplify issues and shorten trial time. But such orders are not absolute and do not completely jell issues in an action. Zuniga v. City of Tucson, 5 Ariz.App. 220, 425 P.2d 122 (1967). '(A)s with all rules problems, the dominant purpose of the courts must be to do justice rather than to vindicate procedural rules.' 1A Barron & Holtzoff, Federal Practice and Procedure, § 473, at 851 (Wright ed. 1960). Rule 16, itself provides that the trial judge may modify the pretrial order at the trial to prevent manifest injustice to the litigants. Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965). Additionally, '(f)ailure formally to amend the pre-trial order is not error where the court admits evidence to the same effect as if the order had been amended.' 3 Moore, Federal Practice 16.20 at 1138 (2d ed. 1968).

Rule 15(b) provides for liberal amendment of the pleadings so that they conform to the evidence. Since all the rules must be read together, it seems clear that Rule 16 must be read in light of Rule 15(b) relating to amendments to conform to the evidence. Bucky v. Sebo, 208 F.2d 304 (2d Cir. 1953).

In this case, during discovery procedures appellee...