Brooker v. Canny

• Decision Date: 07 November 1968
• Docket Number: No. 9285--PR,9285--PR
• Citation: 103 Ariz. 529,446 P.2d 929
• Parties: Frederick Edward BROOKER, Appellant, v. Catherine Clare CANNY, Appellee.
• Court: Arizona Supreme Court

Page 929

446 P.2d 929

103 Ariz. 529

Frederick Edward BROOKER, Appellant, v. Catherine Clare CANNY, Appellee.

No. 9285--PR.

Supreme Court of Arizona, In Banc.

Nov. 7, 1968.

Alan Philip Bayham, Phoenix for appellant.

Moore, Romley, Kaplan, Robbins & Green, by Donald R. Wilson and Craig R. Kepner, Phoenix, for appellee.

McFARLAND, Chief Justice:

This case is before us on a petition for review of a decision of the Court of Appeals reversing a judgment of the Superior Court in favor of defendant. 7 Ariz.App. 337, 439 P.2d 309.

Plaintiff Frederick Brooker sued defendant Catherine Canny for injuries received when the pick-up truck he was driving was struck by an automobile driven by defendant. Plaintiff was going north on Palo Christi Road, and attempted to turn left into a private drive. Defendant, who was driving north behind plaintiff, attempted to pass him just as he made his turn. There was a yellow line in the northbound lane a short distance ahead of the place of the collision. Had both vehicles continued northward, defendant could not have completed passing plaintiff before passing the beginning of the yellow line. The accident occurred in broad daylight.

The jury found for defendant, and judgment was entered for her. Plaintiff appealed. The principal question argued is the propriety of the following instruction:

'You are instructed that the danger of left-hand turns between intersections is so great that they should not be attempted without the exercise of extra precaution. Left-hand turns by automobiles between intersections are less frequent than at crossings, and naturally are not anticipated to the same extent.'

Plaintiff made a timely objection to this instruction on the ground that it required him to exercise 'extra precaution,' and thus placed upon him a standard of extraordinary care, rather than a standard of reasonable care under the circumstances.

In plaintiff's brief before this Court, he also argued that the instruction requiring 'extra precaution' upon making a left turn between intersections differs from the one approved in Phoenix Baking Co. v. Vaught, 62 Ariz. 222, 156 P.2d 725, in that the instruction there approved was limited to left-hand turns on 'much-traveled highways,' while in the instant case no such limitation was mentioned. Since this ground was not disclosed to the trial court, it will not be considered here. Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514.

Appellant's other ground, however, was properly brought to the trial court's attention and to ours. We will therefore examine it. The instruction developed from the language used in McIver v. Allen, 33 Ariz. 28, 262 P. 5, in which we said:

'The danger of left-hand turns on much-traveled highways between intersections is so great that they should not be attempted without the exercise of extra precaution. * * *'

It is still clear to us that the greater the danger in any situation, the greater the precaution that must be taken in order for the driver's actions to be properly described as those of 'an ordinary prudent person under the circumstances.' This does not mean that more than ordinary care must be used; it merely means that ordinary care is measured by the surrounding circumstances, and that the more danger there is the more occasion there is to do different or additional acts. Since a left turn off a much-traveled highway is more dangerous between intersections than at intersections, extra precaution would be taken by an ordinary prudent man because of the circumstances, but this would still constitute only ordinary and not extraordinary care. 'Extra precaution' means a precaution over and above those that would be used under the less dangerous situation of a left turn at an intersection, not a precaution over and above ordinary care under the same or similar circumstances.

The distinction, though somewhat delicate, is nevertheless very meaningful, and failure to keep it clearly in mind will quickly lead one's reasoning down the wrong path. An error at this point, in careful interpretation, is so easy, and the trap so insidious, that we ourselves fell into it in Phoenix Baking, supra, where we said:

'* * * It seems to us that the term (extra precaution) would be understood to mean something more than ordinary but less than extraordinary care. * * *

'When a driver on a road where traffic is heavy makes a left-hand turn between intersections common sense requires that he should exercise more than ordinary care. * * *

'Since in our view the law of the McIver case is a correct statement there can be no objection to the court reading the excerpt therefrom as a part of his instructions.'

The above language cannot survive careful analysis, and is incompatible with the generally-accpeted theory of negligence, which uses the objective standard of 'reasonable care under the same or similar circumstances.' This standard is used in every state in the union, and has been announced many times by this court. For example, in Trojanovich v. Marshall, 95 Ariz. 145, 388 P.2d 149, we construed A.R.S. § 28--754, Subsection A, which reads:

'No person shall turn a vehicle * * * to enter a private road or driveway * * * unless and until the movement can be made with reasonable safety. * * *'

We said in Trojanovich, supra:

'* * * When one turns into a private roadway he is only required to make such turn with reasonable safety. * * *'

It is true that, in Trojanovich, supra, the turn was to the right rather than to the left. However, we stated that the...