City of Phoenix v. Schroeder

• Citation: 405 P.2d 301,1 Ariz.App. 510
• Decision Date: 03 September 1965
• Docket Number: CA-CIV,No. 1,1
• Parties: CITY OF PHOENIX, a municipal corporation and Edward Arthur Barick, Appellants, v. Philip G. SCHROEDER and Timothy J. Martin, Appellees. * 74.
• Court: Arizona Court of Appeals

Page 301

405 P.2d 301

1 Ariz.App. 510

CITY OF PHOENIX, a municipal corporation and Edward Arthur Barick, Appellants, v. Philip G. SCHROEDER and Timothy J. Martin, Appellees. ^*

No. 1 CA-CIV 74.

Court of Appeals of Arizona.

Sept. 3, 1965.

Rehearing Denied Sept. 28, 1965.

Review Donied Oct. 26, 1965.

Kramer, Roche, Burch & Streich, by Dan Cracchiolo and Mark I. Harrison, Phoenix, for appellants.

Langerman & Begam, by Robert G. Begam, Phoenix, for appellees.

CAMERON, Judge.

This is an appeal from a jury verdict in favor of plaintiffs for personal injury suffered by them as a result of a truck accident in the City of Phoenix, Arizona, in 1961.

The facts of the case as they pertain to the appeal are as follows: At approximately nine o'clock in the evening of August the 8th, 1961, the defendant, Edward Arthur Barick, a street maintenance employee for the City of Phoenix, received a call that a tree had blown down in the area of Southern Avenue and 42nd Street in the City of Phoenix, and was obstructing traffic. Equipped with a city owned boom truck, used to lift and haul heavy objects, the defendant, Barick, proceeded to the area accompanied by another city employee, Vernon Hunsaker, who drove a smaller pick-up truck.

When the two men arrived at the scene, they found that a large cottonwood tree had fallen across Southern Avenue at 42nd Street, completely obstructing both east and west bound traffic on Southern Avenue. At this point Southern Avenue is heavily traveled, being one of the main east-west streets in the City of Phoenix. By proceeding partially over the fallen tree and partially over the extreme north shoulder of Southern Avenue, Barick was able to position his boom truck just east of the tree, and in the middle of the street. Immediately setting to work, the defendant Barick, with the aid of Hunsaker, lifted the tree from the roadway and partially onto the boom truck, whereupon defendant pulled his truck forward in order to clear the spot where the tree had lain so that he and Hunsaker could sweep the remaining branches, leaves and other debris off Southern Avenue.

At this point, the position of the boom truck was one of slight angle to the south of the middle of the road, but still extending over the center and into the lane of west bound traffic. From the evidence it appears that no lights were lit on the boom truck with the exception of its two front headlights. On the other hand, Hunsaker, who had positioned his pick-up truck behind and to the southwest of the fallen tree, had turned on his flashing red and yellow emergency lights. These lights, however, though plainly visible to east bound traffic, were obscured from the vision of west bound travelers by the fallen tree's foliage and the position of the boom truck in front of it.

In the meantime, the plaintiffs, Philip G. Schroeder and Timothy J. Martin, were west bound along Southern Avenue in a pick-up truck after returning to Phoenix from near Snowflake, Arizona, where they had been working on a construction job. A few moments later, plaintiffs' truck collided with and side-swiped the defendant's boom truck, flipped over and came to rest on the north side of the road. Only slight injuries and bruised ribs were suffered by the plaintiff Martin. The plaintiff Schroeder suffered severe injuries to his left arm, ultimately requiring surgery to remove it above the elbow.

In December, 1961, suit was brought against both Barick and the City of Phoenix, alleging negligence in that the defendants failed to keep a proper lookout for other vehicles using the highway and failed to use adequate warning signals indicating that a vehicle was stopped on the highway at night.

Defendant answered, denying various allegations of plaintiffs' complaint, and affirmatively pleading that plaintiffs were contributorily negligent. Trial was held before a jury and judgment rendered in favor of plaintiff Martin for $2,500 and plaintiff Schroeder for $95,925.00. Defendants appealed making several assignments of error.

First, defendants contend that the trial court committed reversible error in failing to grant defendant's motion for directed verdict or for judgment n. o. v. because, as a matter of law, plaintiff Schroeder's conduct was the sole proximate cause of the accident.

While we can agree that where defendants are not negligent, they should bear no liability, such is not the case here. The testimony is ample from which a jury might find negligence on the part of the defendants. Defendants parked a large truck with a crane-like boom on a dark highway with its headlights shining in the direction of oncoming west bound traffic. They parked the truck in the middle of the road and although there was sufficient testimony to explain why the defendant felt required to park the truck in the middle of the highway initially, at no time during the trial were defendants able to explain why they did not remove the truck from its potentially dangerous position once the tree was secured and moored to the truck. Further, defendants failed to set flares or other warning devices to apprise the plaintiffs and other motorists that a potentially dangerous condition existed. The evidence is ample from which the jury might well find that the actions of the defendants were negligent and a proximate cause of the accident and injuries of the plaintiffs.

Nor do we believe that the evidence establishes as a matter of law that the plaintiff Schroeder's conduct was the sole, proximate cause of the accident and injuries. Assuming, arguendo, that the plaintiff Schroeder was negligent, under the facts of this case his negligence would be contributory negligence and a fact question for the jury and not a question of law for this Court or the lower court to decide. Article 18, Section 5, Arizona Constitution, A.R.S.; Layton v. Rocha, 90 Ariz. 369, 368, P.2d 444 (1962), Campbell v. English, 56 Ariz. 549, 110 P.2d 219 (1941).

Defendants also contend that Sections 28-960, 961, A.R.S., which provide that trucks and other vehicles must carry flares and other warning devices and display them when disabled 'outside the corporate limits of municipalities', relieves the appellants from carrying and displaying proper warning devices while within the city limits. Again we cannot agree. In the first instance, appellant's truck was not disabled and therefore does not fall within the provisions of Section 28-961, A.R.S. Finn v. J. H. Rose Truck Lines, 1 Ariz.App. 27, 398 P.2d 935 (1965). However, even if the appellants were within the provisions of this statute, we do not see how that could relieve appellants from the duty of proper and reasonable care in providing warning devices for the protection of the plaintiff and other members of the public. The appellants had a duty to act reasonably under the circumstances and to avoid creating an added and unreasonable risk over and above the one which already existed by reason of the fallen tree.

Defendants' second assignment of error concerns the introduction of expert testimony. At the trial, plaintiffs introduced an expert witness, Mr. Ralph Snyder. Mr. Snyder, at the time of the trial, had been engaged in the field of accident investigation for over 28 years. He had served as Assistant State Safety Consultant for the Federal Works Administration, Safety Director of Ground Traffic for Tinker Air Force Base, Safety Engineer for the City Bus Company of Oklahoma City, and for 15 years prior to the trial had been engaged in professional driver testing and training. In the course of this work, he had examined and tested over 15,000 drivers. In addition, Mr. Snyder operated an Accident Analysis Laboratory containing specialized equipment for the analysis of automobile accidents. He was a member of various professional organizations and societies and the author of two texts in his field. He had lectured extensively on the subject of accident analysis. There is no doubt that the recital of his experience in the field of accident analysis was impressive.

Generally, the competency of an expert witness is a matter resting in the sound discretion of the trial court and will not be reviewed except for a clear abuse of that discretion. Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958). We do not find any such abuse of discretion in allowing Mr. Snyder to testify as an expert in his particular field.

Mr. Snyder reconstructed the collision and testified as to his opinion and conclusions about the point of impact and the speed of plaintiffs' automobile immediately prior to the impact, as well as other matters concerning the accident. Mr. Snyder was also able to testify concerning the point of impact of the automobile involved in the second accident which occurred some 15 minutes after the first accident. His testimony from photographs taken at the scene of the accident after the second accident appeared to be most helpful in assisting the jury to determine where plaintiff Schroeder's truck had hit the boom truck and where the second car had hit the same truck almost immediately thereafter.

Defendants contend most strenuously that there is enough evidence and sufficient witnesses from which the jury might well have found these facts upon their own, and that to allow the expert to testify concerning these same facts invades the province of the jury and shifts the responsibility for determining the ultimate facts of the case from the jury to the experts. Defendants contend this creates a trial by experts rather than trial by jury.

There is respectable authority for the view that a skilled or expert witness may not testify as to his opinion upon the ultimate facts in issue before the jury, and that to do so is to invade the province of the jury. Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964). A number of courts therefore have held that skilled or expert opinion evidence is not admissible as to such things as point of impact or collision in motor vehicle...