Campbell v. English
| Decision Date | 10 February 1941 |
| Docket Number | Civil 4268 |
| Citation | 110 P.2d 219,56 Ariz. 549 |
| Parties | HOOKER L. CAMPBELL, Appellant, v. CLARENCE T. ENGLISH and E. M. JONES, Doing Business as ENGLISH FREIGHT CO., and W. E. IVEY, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and case remanded with instructions.
Messrs Barry & Boyle and Mr. Mark Wilmer, for Appellant.
Messrs Struckmeyer & Flynn, for Appellees.
This is an appeal by Hooker L. Campbell, hereinafter called plaintiff, from an instructed verdict and judgment thereon in a case wherein Clarence T. English and E. M. Jones, doing business as English Freight Co., and W. E. Ivey were defendants. The action was one for personal injuries to plaintiff, which it was alleged were caused by the negligence of defendants. The facts necessary for a determination of the question involved in the appeal are not in dispute and may be stated a follows:
On the night of August 6, 1939, plaintiff was driving an automobile from Phoenix to Buckeye, Arizona. He left Phoenix about 9:45 P.M. and was proceeding in a westerly direction towards Buckeye when he collided with the rear of a truck belonging to defendants English and Jones, which was parked upon the highway without any rear lights. It had been raining intermittently through the evening, and at the time of the accident was still drizzling. Plaintiff was proceeding at about twenty to twenty-five miles per hour and as he approached the scene of the collision another car was approaching from the direction of Buckeye. When this car was approximately three hundred yards away it dimmed its lights and plaintiff did likewise, causing his lights to be deflected downward and to the right. The road at that place was approximately thirty feet in width, including the hard surfaced shoulders of the pavement. Defendants' truck which was a large one of the general freight type, painted white, was parked on the right hand side of the road as close as possible to the white center line of the highway. It had been so parked for at least fifteen minutes before the collision, and had no lights of any nature on its rear, nor any clearance nor warning lights placed about the rear of the truck, although it did have two headlights burning dimly. When plaintiff was within about twenty-five feet of the truck, he observed it for the first time and attempted to apply his brakes, which were in first-class condition, but was so close he could not stop until the front of his car hit the rear of the truck. Defendant Ivey, who was the driver of the truck, was in its cab but apparently did not know of the collision until the driver of the car approaching from the direction of Buckeye stopped, went back and rapped on the door of the cab. Plaintiff received certain severe injuries as a direct result of the collision, but on this appeal it is not necessary to discuss their nature nor extent. The complaint alleged negligence on the part of defendants in parking their truck on the highway without warning lights, while the answer admitted the employment of defendant Ivey, and the driving of the automobile by plaintiff, but denied the remaining allegations of the complaint.
Upon the trial plaintiff was cross-examined as to the circumstances under which he hit the rear end of the truck, and testified as follows:
At the close of plaintiff's case defendants moved for an instructed verdict on the ground that it appeared affirmatively by plaintiff's own testimony that he was guilty of negligence which was a proximate cause of the accident. This motion was granted by the court, and judgment was rendered on the verdict accordingly.
The theory argued by defendants, and that upon which the trial court evidently instructed the verdict is that this court has declared that it is negligence as a matter of law for the driver of an automobile to drive at such a speed that he cannot stop his car within the range of his vision ahead, and cites in support of this ruling the cases of Dennis v. Stukey, 37 Ariz. 299, 294 P. 276, and Coe v. Hough, 42 Ariz. 293, 25 P.2d 547, 550. We have laid down the following rule in the latter case:
"...
We affirm that rule as the correct and salutary law of the road. An automobile in motion may be a most powerful instrumentality of destruction to life and property, and one using it must do so in such...
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