Brand v. J. H. Rose Trucking Co., 1

• Decision Date: 14 September 1966
• Docket Number: CA-CIV,No. 1,1
• Citation: 418 P.2d 120,4 Ariz.App. 125
• Parties: James BRAND and North American Van Lines, Inc., Appellants, v. J. H. ROSE TRUCKING COMPANY and Marion M. Hawkins, Appellees. * 287.
• Court: Arizona Court of Appeals

Page 120

418 P.2d 120

4 Ariz.App. 125

James BRAND and North American Van Lines, Inc., Appellants, v. J. H. ROSE TRUCKING COMPANY and Marion M. Hawkins, Appellees. ^*

No. 1 CA-CIV 287.

Court of Appeals of Arizona.

Sept. 14, 1966.

Rehearing Denied Oct. 3, 1966.

Review Granted Nov. 1, 1966.

Shimmel, Hill, Kleindienst & Bishop, by Merton E. Jarks and Richard A. Black, Phoenix, for appellants.

Chandler, Tullar, Udall & Richmond, by Thomas Chandler, Tucson, for appellees.

MOLLOY, Judge.

This is an appeal by the plaintiffs from a verdict directed for the defendants and from a denial of the plaintiffs' motion for a new trial. The ultimate question for review is whether the trial court erred in taking the case from the jury. In this regard, plaintiffs contend that (1) plaintiffs established negligence per se on the part of the defendants and (2) that 'There is sufficient evidence in the record from which the jury could conclude that but for the negligence of the defendants, the accident which destroyed the property of the plaintiffs would not have occurred.'

Facts are critical to the determination of this appeal, and will be viewed in the light most favorable to the party against whom the verdict was directed. Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702 (1959). In a negligence action, it is incumbent upon the plaintiff to present evidence from which it may be reasonably inferred that negligent conduct on the part of the defendant was a proximate cause of the plaintiff's injuries, Rosendahl v. Tucson Medical Center, 93 Ariz. 368, 380 P.2d 1020 (1963), so that it may be preliminarily stated that if there is any such evidence the case should have been submitted to the jury for its decision. Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803 (1959).

A collision occurred between a North American Van Lines truck, being driven by the tractor-owner James Brand, in a westerly direction, and a 1949 Plymouth automobile driven in an easterly direction by Francis or Sally Williams, October 18, 1958, on US Highway 80, about 17 miles west of Benson, Arizona, at 7:15 a.m.

The accident occurred between a bridge over Cienega Wash and a railroad overpass 708 feet east of the easternmost edge of the Cienega Wash Bridge. The highway at the scene of the accident is 33 feet 10 inches wide. The south, or eastbound, lane is 19 feet 10 inches wide. The point of impact between the North American Van Lines truck and trailer driven by plaintiff, James Brand, and the 1949 Plymouth driven by Francis Williams or Sally Williams, was 56 feet east of the east end of Cienega Wash Bridge, and approximately 5 feet north of the center strip separating the two lanes of traffic, that is, in the North American Van Lines lane of traffic.

At the time of the accident, the defendant Rose Company's truck and trailer were parked towards the right side of the road in the eastbound lane between the Cienega Wash Bridge and the railroad overpass. The vehicle had stopped because it was unable to pass under the railroad track by reason of an over normal height load (a crated wing of a jet aircraft). The defendants' truck and trailer were not physically involved in the collision which occurred, but the plaintiffs contend that the manner of the parking of this rig in the eastbound lane was one of the causes of the accident.

Other litigation involving this same accident has been before us. In Finn v. J. H. Rose Truck Lines, 1 Ariz.App. 27, 398 P.2d 935 (1965), an action brought by the special administrator of the Estate of Francis and Sally Williams against the Rose Company, appellees, we affirmed a verdict directed in favor of the Rose Company, holding that there was insufficient evidence of negligence on its part to make out a jury question. The evidence elicited in that action, and the contentions made therein, are sufficiently distinct from the matters before us in this appeal that the Finn decision is not controlling.

As to the appellants' contention that there is sufficient evidence to go to the jury on the question of the defendants' negligence, we agree. We have evidence in this case which was lacking in Finn v. Rose Truck Lines, supra. An eyewitness (Brand) estimated that the Rose truck was 3 feet from the south curb, which might be considered by a jury to be not as far as practicable off the highway. See A.R.S. § 28--871, subsec. A. Addintionally, we have here the overheight permit in evidence, which clearly requires the permittee to '* * * detour underpasses.' The driver of the Rose truck failed to do this, though he had reason to know there would be insufficient clearance at this underpass, having traveled the highway many times. Additionally, our attention has been called to a pertinent regulation of the Arizona Corporation Commission, which adopts the Safety Regulations of the Interstate Commerce Commission. Section 192.26 of these safety regulations requires that under the situations pertinent to this case, red flags should have been placed in the center of the traffic lane, approximately 100 feet to the rear and 100 feet to the front of the parked vehicle. There is no dispute but what Hawkins, the driver of defendants' truck, failed to post such flags. The question remains, however, as to whether there was sufficient evidence that any negligent conduct of the defendant was a proximate cause of injury to the plaintiffs. Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74 (1965).

There was available at the time of trial the testimony of two eyewitnesses, Brand, driver of the North American Van truck, and Thomas Traynor, driver of a passenger car which was following the Williams vehicle at a distance of five to six car lengths. After the collision in question, the Williams car was thrown back into the eastbound lane in such manner that the Traynor vehicle was unable to avoid being hit thereby. The testimony of Mr. and Mrs. Williams was unavailable, as they were instantly killed in the collision, with their bodies being thrown out of their vehicle so that it was impossible to determine which of them was driving their Plymouth passenger car.

Brand testified that he first saw the Rose truck as he passed under the railroad overpass, that he was first aware that the Rose truck was stopped when he passed it, that as he '* * * came on down past the truck * * *' there was a '* * * little congestion' in the traffic, that this was caused by a little car that was stopped behind the truck in a position as if to pass and, because of the importance of the testimony, we now go to the transcript to continue with the testimony of the witness Brand:

'Then I went on by, and as I went on by the truck and the little car, this other car was coming across the bridge, and just as I went by him, he appeared to me as if he had everything under control. He was driving normal, and all of a sudden, he just came right out and ran right into me. He was about a 45-degree angle when he came out.'

Brand testified as to the speed of the Williams car as follows:

'Q And the Williams car is somewhere down the road approaching you at about the same speed that you are approaching it, is that correct?

'A Yes.

'Q You fix the speed of both vehicles about the same. Did the Williams car ever slow down appreciably or materially until it shot across the road at you?

'A I couldn't answer that.

'Q It didn't appear to, Mr. Brand?

'A No.

'Q Didn't the Williams vehicle maintain the same speed, go into a skid, and come right at you at roughly the same speed?

'A Well, if he was skidding, he would have to be slowing down. I couldn't say yes to that. I couldn't give you--

'Q What do you think the speed of the car was at the moment it collided with you, the Williams car?

'A. I would estimate around fifty miles an hour.'

Brand further testified:

'Q Didn't you have the impression at all times before it actually shot across the road that he had plenty of room to stop before he collided with anything?

'A I thought he would have stopped, yes.'

Subsequently, he further testified:

'Q Referring to 9 for identification, as you approached and passed the Rose truck, did you maintain pretty nearly the same line of travel, or did you give ground to your right?

'A Well, I moved slightly to the right, giving as much room, seeing how the highway was so congested and everything, I moved slightly to the right, I would say two or three feet, to allow maximum distance between us.'

The following are excerpts from the testimony of the eyewitness Traynor:

'Q Now tell the jury in your own words, Mr. Traynor, what happened after you had seen the things you said you saw up ahead of you?

'A The Plymouth (the Williams car) which I was following started to pull out to pass.

'Q Pardon me, now. Let me interrupt you. I hate to keep doing it, but it might save some time. What is your best opinion as to the speed of the Plymouth?

'A I can't judge the speed of the Plymouth.

'Q Do you have any idea whether it was going slower or faster than your car?

'A Approximately the same speed. (Traynor had estimated his speed as 55 miles per hour.)

'Q All right. You said it pulled out to pass. Was there another vehicle in front of the Plymouth?

'A Yes, there was.

'Q Where was the Plymouth at that time? Was it on or off the bridge?

'A It was near the end of the bridge.

'Q On or off?

'A I think it was right near the end of the bridge. I am not sure.

'Q Then tell the--Withdraw the question. The car in front of you, was it going at approximately the same speed as the Plymouth, slower or faster?

'A The car in front of the Plymouth was moving slower.

'Q All right. Then tell the jury what occurred after that?

'A The Plymouth pulled back in and hit his brakes--I could see his brake lights--to keep from hitting the car in front of him, and then the car swerved into the other lane.

'Q Now, 'the car,' which car is that?

'Q The '49 Plymouth.

'Q Did you see a van line truck, a North American Van Lines truck, approaching as the Plymouth started out to pass?...