City of Phoenix v. Mullen

• Decision Date: 18 November 1946
• Docket Number: 4852
• Citation: 174 P.2d 422,65 Ariz. 83
• Parties: CITY OF PHOENIX et al. v. MULLEN
• Court: Arizona Supreme Court

174 P.2d 422

65 Ariz. 83

CITY OF PHOENIX et al. v. MULLEN

No. 4852

Supreme Court of Arizona

November 18, 1946

Appeal from Superior Court, Maricopa County; James A. Walsh, Judge.

Affirmed.

Richard Minne and Jennings, Salmon & Trask, all of Phoenix, for appellants.

Fred V Moore, of Phoenix, for appellee.

Morgan Judge. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Morgan Judge.

About 5 o'clock in the afternoon of January 5, 1945, plaintiff while walking southerly across Washington Street in the west crosswalk of its intersection with Second Avenue, City of Phoenix, was injured when coming into contact with one of defendant city's busses engaged in making a right-hand turn from its southerly course on Second Avenue westerly onto Washington Street. The plaintiff was practically blind in his left eye, and apparently did not see the bus, which was being driven southerly and westerly from his rear in making the turn, until after he had been knocked down by the contact The evidence indicated that the only part of plaintiff's body which came in contact with the bus was the left side of the forehead. The point of contact was at or near the right-hand front corner of the bus, or just back of the front door at that corner. The bus was being driven slowly but no horn was sounded nor other signal given, and it did not stop after beginning the turn westward, until the accident occurred.

In addition to a contusion and cut on plaintiff's head, his right hip was bruised. Following the injury, plaintiff complained of severe pains in his back. He laid off his usual work as a janitor for about two months. During this period he was receiving medical treatment. At the time of the trial, June 27, 1945, plaintiff testified that his back was still giving him pain, and that his wife was giving him light treatments, baths, rubs and massage. He was 56 years of age. His testimony was that prior to the accident he could do all heavy work connected with his duties as a janitor, but after the accident and up to the date of the trial he could not do any heavy lifting.

Medical testimony submitted by defendants disclosed that x-rays were negative, and that plaintiff's injuries were not permanent, and that if he suffered any pain it was due to pre-existing neuritis from which he had suffered and had been medically treated for a number of months before the accident. On cross-examination defendants' doctor testified that if plaintiff had a bruise in the area of the claimed pains, this condition might be related to the trauma. The testimony of plaintiff and his doctor was to the effect that the pre-existing neuritis existed in plaintiff's neck and shoulder, while the pains for which he was given treatment following the accident were in the lower portion of his back.

The cause was tried before a jury which returned a verdict for plaintiff in the sum of $ 2,883.50. From the judgment based on this verdict, and the denial of its motion for new trial, this appeal is brought by defendants. The errors assigned relate to the giving and refusal of instructions, the sufficiency of the evidence to sustain the verdict, and the excessiveness of the damages.

It is urged that the court erred in instructing the jury that a violation by defendants of the provisions of sections 66-111 and 66-112, ACA 1939, or either of them, if it be the proximate cause of an injury to another, would be negligence per se. The basis of this claim is that section 66-111 is not applicable because the evidence disclosed that at the time the driver of the bus made the right-hand turn, the plaintiff was in a place of safety on or near the north curb, and that while the bus was making the turn, plaintiff stepped out in the crosswalk and walked into the side of the bus near its front end. Under these circumstances, defendants assert there was no duty on the driver to sound his horn. Defendants' claim of error with respect to the instruction given under section 66-112 is founded upon the asserted omission of plaintiff to plead as a ground of negligence that defendants had failed to yield the right of way to him as required by the statute, and that this theory or element was not at issue.

Section 66-111, in so far as pertinent, reads as follows: "The driver of any vehicle upon a highway before starting, stoping or turning from a direct line shall first see that such movement can be made in safety; if any pedestrian may be affected by such movement he shall give a clearly audible signal by sounding the horn;"

We are committed to the doctrine that if the proximate cause of an injury to another is the failure of the driver of the vehicle to comply with the positive directions of the statute relating to the operation of motor vehicles, such failure or violation is negligence per se and actionable negligence. Herzberg v. White, 49 Ariz. 313, 66 P.2d 253; Womack v. Preach, 63 Ariz. 390, 163 P.2d 280; Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 166 P.2d 816. Where the driver fails to comply with the positive directions of the statute, the question of "whether such statutory negligence in any way contributed to the accident and injury of the plaintiff was one for the jury." Southwestern Freight Lines, Ltd. v. Floyd, 58 Ariz. 249, 259, 119 P.2d 120, 125.

Defendants urge that "the plain meaning of the statute is that a horn must be sounded whenever a pedestrian may be affected by being run into or run over by a motor vehicle. It most certainly was not intended to require a warning to keep pedestrians from walking into the side of the vehicle. To adopt such a construction is to create a distorted and entirely unnatural rule of conduct. The driver of a motor vehicle cannot possibly be chargeable as to pedestrians who either blindly walk into the side of his vehicle, or who look without seeing, and walk into the side of the vehicle." They cite a number of cases supporting this contention.

We deem it unnecessary to consider these authorities, for the reason that defendants' premises are not based upon the conceded facts. Their theory seems to be that the driver of the bus in making a right turn, is not required to give a signal if the pedestrian crosswalk at the point where the bus will cross is unoccupied. They disregard the very plain provision of the law which requires the signal to be given "if any pedestrian may be affected by such movement." They overlook, too, the fact that the bus was coming up and making its swing from the rear of plaintiff, and that in completing the turn to the west, the front part of the bus, as it reached the crosswalk, would be swinging northerly as well as proceeding westerly. Indeed, it may be said that plaintiff, as he proceeded southerly, was struck by the front part of the bus on its northerly swing. Moreover, the evidence is that plaintiff was practically blind in his left eye, and because of this and the fact that the bus came from his rear, he did not see it. Clearly, this was a case where a pedestrian might be and was actually affected by the movement of the bus. Plaintiff at the curb on the north end of the crosswalk had a right to enter this walk, and would not be required to look to the rear to see if some motor vehicle was about to make a turn, since the duty is imposed upon the driver of the motor vehicle to give warning. The facts not only authorize the giving of the instruction, but justify the jury in finding that the driver's failure to sound the horn was the...