Avechuco v. Awtrey

• Decision Date: 11 June 1970
• Docket Number: No. 9884,9884
• Citation: 470 P.2d 451,106 Ariz. 44
• Parties: John A. AVECHUCO and Esther M. Avechuco, Husband and Wife, and Ruth E. Avechuco, by Her Guardian ad Litem, Appellants, v. Jess Willard AWTREY, Jr., Appellee.
• Court: Arizona Supreme Court

Page 451

470 P.2d 451

106 Ariz. 44

John A. AVECHUCO and Esther M. Avechuco, Husband and Wife, and Ruth E. Avechuco, by Her Guardian ad Litem, Appellants, v. Jess Willard AWTREY, Jr., Appellee.

No. 9884.

Supreme Court of Arizona, In Division.

June 11, 1970.

Alan Philip Bayham (deceased), and Henry L. Zalut, Phoenix, for appellants.

Lewis, Roca, Beauchamp & Linton, by D. W. Grainger, and Charles D. Roush, Phoenix, for appellee.

McFARLAND, Justice.

Appellants John A. Avechuco and Esther M. Avechuco, husband and wife, and Ruth E. Avechuco by her Guardian ad Litem--hereinafter referred to as plaintiffs or as John, Esther and daughter, respectively--sued the appellee Jess Willard Awtrey, Jr.--hereinafter referred to as defendant--for damages growing out of an automobile collision. At the close of plaintiffs' case, the court directed a verdict in favor of defendant. The plaintiffs appeal from the directed verdict.

On the 12th day of July 1964--sometime after five p.m.--the plaintiffs were driving from Rillito, Arizona, to Tempe, Arizona. The lawsuit arose out of a 13-vehicle accident on Highway 84 about two miles north of the Red Rock overpass in the north-bound lanes of traffic on the divided highway. Plaintiffs had passed three 'semi' trucks about two miles before they arrived at the Red Rock underpass, and, according to their testimony, no one passed them after that before the accident. It was very windy and dusty, and after plaintiffs passed the Red Rock underpass it started getting dustier. It was so bad that plaintiffs tried to get off the road. They saw two cars--a white 1960 Oldsmobile belonging to Arnold on the right and a white car in front of them. It was at this time that a pickup hit the rear of plaintiffs' car driving it forward about half a car length. John got out of the car, at which time the pickup (Adame's) which was green and white was hit by a third car, which again drove plaintiffs' car another half a car length forward.

After the first impact John told Esther to get out of the car, and she was partially out of the car at the time of the second impact which caused injury to her arm. A third impact was caused by one of the 'semi' trucks running into the group of cars in which the plaintiffs' car was parked. Esther testified as follows:

'* * * I was in the process of getting my boy out of the car, and when I was hit I was looking south, and I saw the pickup truck and another car behind the pickup truck.

'Q And at the time that you observed this, was the dust in any way impeding your complete view?

'A Well, it came in dusts (sic). When I was looking back I remember seeing the green truck and the car, light colored car, and the top of the semi coming.

'Q Now, you say a light colored car. Do you have an impression as to the color it appeared?

'A To me it looked white.

'Q I wonder if you will step up to the board using Plaintiffs' Exhibit 5 in evidence.

'This is supposed to be a white car. Would you place this white car where you had occasion to observe it behind the pickup truck?

'A About here (indicating).

'Q So that the record will be clear, I wonder if we can have you draw a circle around the white car to indicate where it was.

'Now, have you since learned who was in the white car?

'A The Arzatis.

'Q Now, you may resume the stand. (Whereupon the witness resumed the stand.)

'At the time that you were hit, had you taken any of your kids out of the car at all?

'A No. I was holding my four-year old still half there.

'Q Half in and half out?

'A Yes.'

On cross-examination, she stated, when questioned as to whether the Arzati vehicle had struck the pickup truck causing the second impact:

'No. There was an impact--I can't tell you which car hit, but there was an impact.'

She also stated that when she was looking back just before the second impact she saw the green truck and a light-colored car and the top of a 'semi' truck coming. She placed the white car on the diagram behind the pickup truck. She further testified that the first and second impacts were 'about the same.' She then stated that she got her four-year-old boy and her daughter out of the car, and turned to run to the fence. The Arnold car was driven toward her and pinned her against the fence.

The defendant testified that he was driving on the inside lane in the dust-storm, and braked his car as much as he could without skidding--that he saw two cars in the right lane--one protruding in his lane which he barely grazed, hitting its left front fender while he was going eight or ten miles per hour. He parked on the highway a hundred or 125 feet farther ahead and to the right on the shoulder, got out of his car, and talked with the driver of another car which had pulled in behind him. He lighted a flare, and walked back toward the car ahead, hoping to warn the 'semis' with the flare. He heard a collision, and turned away from the area. It was stipulated between plaintiffs and defendant that a medical doctor would testify that:

'* * * 3-impact collision was the competent producing cause of the conditions for which he treated Esther Avechuco and for which she was hospitalized on two occasions and for which she is still suffering some residual disability.'

The plaintiffs contend that it was the defendant's car which hit the pickup which in turn hit their car at the time Esther was injured during the second impact. They base this contention on plaintiffs' testimony that no car had passed them after they passed the 'semi' trailers and hence the defendant had to be behind them.

Defendant testified that he had passed a red-and-white Ford before he reached the underpass. There was only one red-and-white Ford identified, and that was plaintiffs'. However, for the purpose of a motion for directed verdict we must assume that the testimony of the plaintiffs was correct. Casey v Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662.

The plaintiffs further point out that the defendant's car had white paint on it resulting from an impact, as testified by both plaintiffs and defendant. They draw the inference that this, coupled with plaintiffs' testimony that defendant had not passed them, was sufficient evidence to show the second impact was caused by the defendant's car.

The issue in the instant case is whether the plaintiffs proved a prima facie case. If the evidence was sufficient to sustain a verdict based upon the alleged negligence of the defendant, then the motion should have been denied. Robledo v. Kopp, 99 Ariz. 367, 409 P.2d 288; Davis v. Weber, 93 Ariz. 312, 380 P.2d 608; Costello v. Wood, 89 Ariz. 270, 361 P.2d 10; Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702; Casey v. Beaudry Motor Co., supra; Picow v. Baldwin, 77 Ariz. 395, 272 P.2d 613.

We have held, in making a determination as to the correctness of a directed verdict, that the evidence must be viewed in the light most favorable to the plaintiff; and that the Court must consider the evidence and the inferences to be drawn therefrom in the light most favorable to the party against whom the verdict was directed. Eaton Fruit Co. v. Calif. Spray-Chemical Corp., 103 Ariz. 461, 445 P.2d 437; Robledo v. Kopp, supra; LeRoy v. Phillips, 97 Ariz. 263, 399 P.2d 669; Sturm v. Heim, 95 Ariz. 300, 389 P.2d 702; Spain v. Kelland, 93 Ariz. 172, 379 P.2d 149; In Re Stitt's Estate, 93 Ariz. 302, 380 P.2d 601; Reed v. Gavin, 91 Ariz. 38, 369 P.2d 660; Nieman v. Jacobs, supra; Casey v. Beaudry Motor Co., supra; Pena v. Stewart, 78 Ariz. 272, 278 P.2d 892.

It requires an examination of the evidence to determine whether it is sufficient to make out a prima facie case. Both plaintiffs testified that they did not see defendant's automobile before or at the time of the impact--nor did they know which car caused the second impact. The only testimony as to either of them seeing the car was that of Esther who said that she...