Campbell v. City of Tucson

• Decision Date: 27 September 1966
• Docket Number: No. 2,CA-CIV,2
• Citation: Campbell v. City of Tucson, 4 Ariz.App. 155, 418 P.2d 401 (Ariz. App. 1966)
• Parties: Minola F. CAMPBELL and Philip S. Malinsky, as Administrator of the Estate of Lem W. Campbell, Deceased, Appellants, v. CITY OF TUCSON, Appellee. * 263.
• Court: Arizona Court of Appeals

Page 401

418 P.2d 401

4 Ariz.App. 155

Minola F. CAMPBELL and Philip S. Malinsky, as Administrator of the Estate of Lem W. Campbell, Deceased, Appellants, v.CITY OF TUCSON, Appellee. ^*

No. 2 CA-CIV 263.

Court of Appeals of Arizona.

Sept. 27, 1966.

Rehearing Denied Oct. 31, 1966.

Healy, Laubscher & Dickerson, by Vernon F. Dickerson, Tucson, for appellants.Chandler, Tullar, Udall & Richmond, by Robert S. Tullar, Tucson, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered in favor of the defendant, City of Tucson, on a directed verdict by the court.The action is one for personal injuries and wrongful death arising out of an intersection accident occurring in Tucson, Arizona, on March 2, 1962.

At about 9:15 p.m., on this date, a pickup and a passenger car collided at the intersection of Grant and Alvernon Boulevards, two major traffic arteries of the City of Tucson.The pickup, being driven in a westerly direction on Grant, was owned by the plaintiff, Campbell, and was operated at the time by Mr. Campbell, who was killed in the collision.The Wilson car, proceeding in a northerly direction on Alvernon, was operated by Mrs. Wilson who had with her as a passenger her future daughter-in-law.As a result of the accident, in addition to the death of Mr. Campbell, there were personal injuries to Mrs. Campbell and the two occupants of the Wilson car.

All witnesses agreed that at the time of the accident the traffic directing signal suspended from the center of the intersection was not operative.Approximately twenty minutes prior to the accident a police officer had been through the intersection, at which time the signal was properly functioning, alternating between red, amber and green as is customary with traffic lights in the Tucson area.After the accident, it was discovered that the power switch controlling electric power to the signal in question had been tampered with by some unknown person.The switch in question was attached to the side of a wooden power pole at one of the corners of the intersection with the bottom of the box being '* * * within a couple of inches * * *' of seventy-three inches above the ground.The switch box is metal and is approximately five inches wide, eight and one-half inches high and three and one-half inches deep.Outside of the switch box and on the right-hand side thereof is a lever-like handle about three inches long for engaging and disengaging the switch inside the box.The switch in question, as manufactured, had a hasp provided for locking the switch in the 'off' position but no method of locking the control handle in the 'on' or 'up' position.This particular switch box had originally been installed by county traffic officials, before the city annexed the particular intersection into the city limits in March of 1959.

As originally installed by the county, there had been improvised a wire restraining device, to hold the switch arm in question in the 'on' position, and this was still being used at the time of the accident.The wire used was an eleven gauge steel wire which was fastened in the back of the box with a wooden screw into the wooden pole.The wire was wrapped around the switch arm in such manner that it was not possible to pull the arm into the off position without untwisting the wire wrapped around the switch handle.The wire in question was of such tensile strength that it was not possible to untwist the wire with the bare hands, but the same could be done with a pair of pliers, or a nail or similar device to twist the wire.

The city had a program of replacement of this type of a switch box with a newer one in which the switch control was internal to the box rather than external.Such new type of switch box was locked with a padlock.This practice of improving this type of switch had not as yet reached the box in question.The city had one full-time maintenance man to maintain between one hundred five and one hundred ten signals in the city, while the national average was to have one maintenance person for each thirty-five signals.The city had no prior warning of any malfunctioning of this particular signal.Within five months prior to the accident in question, two switch boxes in the neighborhood of the University of Arizona had been tampered with but both switches which had been disengaged were inside the new type of pedlocked box.

Testimony from the traffic director of the defendant-city indicated that there were approximately 22,000 cars daily entering the intersection in question.The evidence as to the occurrence of this accident will support the conclusion that the driver of either one or both vehicles was misled by the absence of a signal light ahead into believing that stop signs protected his or her vehicle from traffic proceeding from crossing streets.¹

The only question raised an appeal is whether there was sufficient evidence to go to the jury on the question of the defendant's...