Casey v. Marshall, 4808

• Decision Date: 22 April 1946
• Docket Number: 4808
• Citation: 168 P.2d 240,64 Ariz. 232
• Parties: CASEY v. MARSHALL et ux
• Court: Arizona Supreme Court

168 P.2d 240

64 Ariz. 232

CASEY v. MARSHALL et ux

No. 4808

Supreme Court of Arizona

April 22, 1946

Appeal from Superior Court, Maricopa County; W. E. Ferguson, Judge.

Suit by Jack H. Casey against V. R. Marshall and Mary Doe Marshall husband and wife, to recover for personal injuries and damages resulting from collision between plaintiff's and defendants' automobiles, wherein defendants filed a counterclaim for damages to their automobile. From a judgment in favor of defendants on the complaint, the plaintiff appeals.

Judgment reversed and cause remanded with directions to grant a new trial.

Hill Robert & Hill, of Phoenix, for appellant.

Gust Rosenfeld, Divelbess & Robinette, of Phoenix, for appellees.

Morgan Judge. La Prade, concurring. Stanford, Chief Justice (dissenting).

OPINION

Morgan, Judge.

Plaintiff brought suit against defendants for recovery of damages growing out of an automobile collision at the intersection of East Roosevelt and North Seventh Streets, Phoenix, at about the hour of 2 o'clock in the morning, on May 22, 1944. The facts were:

Plaintiff was driving his car in a westerly direction. Defendant's automobile, being operated by their seventeen year old son, was proceeding southerly on Seventh Street. The intersection controls -- flashing signals -- consisted of yellow flashes for north and south traffic on Seventh Street, and red flashes for Roosevelt east and west traffic. The Phoenix city ordinances require drivers of vehicles to stop before entering the intersection, where the flashing signal is red, and where the flashes are yellow to proceed into the intersection "only with caution and in safety." Plaintiff made a momentary or hesitant stop at the intersection and proceeded to cross, driving between seven and ten miles an hour. He nor none of those in his automobile saw defendants' approaching car, which was being driven at a speed of between 25 and 45 miles per hour. Nor did the driver of that car see plaintiff's car until the moment of collision.

The collision occurred in the northwest segment of the intersection, west of the center line of Seventh Street, and 10 to 15 feet from the northwest corner. From the point at which plaintiff had entered the intersection, he had driven 30 feet. The evidence indicates that at the time plaintiff made hesitant stop and entered the intersection, defendants' car was about the middle of the block north of Roosevelt. Both cars had lights. The intersection was lighted. The view of the intersection and its approaches was unobstructed. The driver of defendants' car did not apply his brakes and, after the collision, was unable to do so because of broken connections. Defendants' car struck the center of plaintiff's car on the right-hand side. The north line of Roosevelt Street, west of the intersection, is a few feet south of the same line east of the intersection. Plaintiff's car was turned slightly to the left when the impact occurred. Both cars drove about 50 feet south on Seventh Street before coming to a stop. Severe injuries were suffered by plaintiff, and both automobiles were damaged.

Plaintiff alleged negligence on the part of the driver of defendants' car, which was denied by defendants, who set up the defense for contributory negligence. Counterclaim for damages to defendants' car was made. The cause was tried before a jury which found verdicts against defendants on their counterclaim, and against plaintiff on his complaint. Judgment being entered, and plaintiff's motion for new trial having been denied, appeal was taken by him to this court.

The only claim of error made is upon the failure of the trial court to give the following offered instruction upon the doctrine of last clear chance: "The jury are instructed that, if you find that the plaintiff had negligently placed himself in a perilous situation, and that the driver of the defendants' automobile, by the exercise of reasonable care, could have seen and should have seen the perilous situation of the plaintiff in time to have avoided injuring him, by the exercise of reasonable care on the part of the driver of the automobile, then such negligence on the part of the plaintiff will not defeat his right to recover, if the negligence of the plaintiff had terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him."

Plaintiff supports his claim that this instruction should have been given by two propositions. First, in determining whether the instruction was justified, the evidence taken in support of plaintiff's theory must be considered in its most favorable light to that end. Second, where there is any reasonable theory supported by the evidence, it is the duty of the court to instruct upon such theory.

Defendants do not contest these propositions. Their position is that they have no application for the following reasons: 1. To be available to the plaintiff the "last clear chance doctrine" or theory should have been pleaded. It was not made an issue by the pleadings, and therefore the instruction was properly denied. 2. The doctrine may not be invoked unless from the evidence it can be found that the driver of defendants' car discovered, or by the exercise of reasonable care should have "discovered the plaintiff's position of peril in time so that by the exercise of due care he could have averted the accident."

With respect to requests for instructions, it was said in Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30, 32: "It must be remembered that in determining whether an instruction is justified, we must consider the evidence in the strongest possible manner in support of the theory of the party asking the instruction."

This appears to be the rule. Morris v. Pacific Electric R. Co., 2 Cal.2d 764, 43 P.2d 276; Hambleton & Co. v. Union National Bank of Pittsburgh, 161 Md. 318, 157 A. 404.

It is well settled that on appeal the court must assume that the jury, as the trier of the facts, accepted the view of the evidence most favorable to the winning party. This rule, however, does not apply in determining whether instructions should or should not have been given. We must assume that the jury might have believed the evidence upon an instruction in favor of the losing party was predicated, and that if the correct instruction had been given "the jury might have rendered a verdict in favor of the losing party." O'Meara v. Swortfiguer, 191 Cal. 12, 214 P. 975, 976. The truth of the evidence or allegations tending to warrant the instruction offered will be assumed by the court on appeal. Arnold & Son Transfer & Storage Co. v. Weisiger, 224 Ky. 659, 6 S.W.2d 1084; Dixon v. Green, 178 N.C. 205, 100 S.E. 262; Stephens v. City of El Dorado Springs, 185 Mo.App. 464, 171 S.W. 657.

Whether it was necessary, before the adoption of the new Rules of Civil Procedure, to affirmatively plead the last clear chance doctrine to make it an issue, we need not determine. It is our view that under the present rules no pleading is required specifically setting up the last clear chance doctrine. Section 21-404, ACA 1939, Rule 8(a), provides that the complaint shall consist of a short and plain statement of the claim. The gist of section 21-408, ACA 1939, Rule 8(e), is that all pleadings must be simple, concise and direct. By the provisions of section 21-409, Rule 8(f), all rules must be construed as to do substantial justice. In section 21-448, it is provided that "leave [to amend] shall be freely given when justice so requires." Under section 21-449, Rule 15(b), amendments to conform to the evidence shall be freely granted when "the merits of the action will be subserved thereby." Such amendment may be made even after judgment.

In the recent case of Keystone Copper Mining Co. v. Miller, Ariz., 164 P.2d 603, 611, we said: "The relief to which a party is entitled depends upon the facts pleaded rather than upon the theories advanced." Here, the plaintiff alleged that he had reached the westerly side of the intersection, and was all times in plain view of the driver of defendants' car. Notwithstanding this, said driver carelessly and negligently drove his automobile into and against plaintiff's automobile. The negligence of the driver of defendants' car was thus alleged to be the proximate cause of the injury. The last clear chance doctrine is only one of the rules of law to be applied in the determination of whose negligence is the proximate cause of the accident or injury complained of. The allegations of the complaint were, therefore, sufficient for the application of the rule. We think the statement of the Circuit Court of Appeals, 4th Circuit, in Swift & Co. v. Young, 107 F.2d 170, 172, is applicable to the situation here: "The last clear chance doctrine is but one of the rules of law applied in determining whose negligence is to be deemed the proximate cause of an injury complained of; and there would seem to be no occasion for pleading it where the negligence of the defendant relied on for the application of the doctrine is pleaded as the proximate cause of the injury. * * *."

The last clear chance doctrine is recognized in this jurisdiction. Garlington v. McLaughlin, 56 Ariz. 37 104 P.2d 169. Where there is evidence disclosing the fact elements, the question is one for the jury. Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Center v. Yellow Cab Co. of Los Angeles, 216 Cal. 205, 13 P.2d 918. The rule regarding the doctrine is clearly stated in Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 687, 36 L.Ed. 485, 493, as follows: "* * * Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted...