City of Tucson v. Wondergem

• Decision Date: 08 September 1969
• Docket Number: No. 2,CA-CIV,2
• Citation: 10 Ariz.App. 267,458 P.2d 361
• Parties: The CITY OF TUCSON, a municipal corporation, Appellant, v. Jennie WONDERGEM, surviving spouse of Peter Wondergem, deceased, Appellee. 647.
• Court: Arizona Court of Appeals

Page 361

458 P.2d 361

10 Ariz.App. 267

The CITY OF TUCSON, a municipal corporation, Appellant, v. Jennie WONDERGEM, surviving spouse of Peter Wondergem, deceased, Appellee.

No. 2 CA-CIV 647.

Court of Appeals of Arizona.

Sept. 8, 1969.

Rehearing Denied Oct. 10, 1969.

Review Granted Nov. 18, 1969.

Enos P. Schaffer, City Atty., City of Tucson, by Frederick S. Dean, Asst. City Atty., for appellant.

Rees, Estes & Browning, by William D. Browning Tucson, for appellee.

MOLLOY, Chief Judge.

This is a second appeal from a wrongful death action brought against the City of Tucson for a death arising out of the flooded condition of a public street after a heavy rain on October 22, 1961. Previously, this court, City of Tucson v. Wondergem, 6 Ariz.App. 570, 435 P.2d 77 (1967), affirmed the granting of a new trial for the reason that an 'act of God' instruction was given in the first trial.

On retrial, a substantial judgment was rendered in the plaintiff's favor and this appeal questions whether it was proper to The facts developed at the second trial are substantially the same as those established at the first. The street in question is a north-south one, which crosses the Tucson Arroyo, a natural drainage channel flowing northwest. On the occasion in question, at the time of the peak flow at 10 p.m., the arroyo was carrying 5,000 cubic feet per second of water, while the conduit underneath the roadway had a maximum capacity of 2,500 cubic feet per second. The excess water flowed over the top of the paved road in a southeast to northwest direction. The principal flow across the highway was above the bridge over the arroyo, but there was water flowing diagonally across the road both north and south of the bridge. One witness testified that he crossed in this area at about 9:30 p.m., when there was approximately four to five hundred feet in horizontal expanse of water flowing across the road in depths ranging from zero to one and a half feet. At the time this occurred, the deceased's automobile had not as yet become stranded in this water.

give a 'sudden emergency' instruction, whether it was proper to instruct the jury that the deceased was presumed to have exercised due care for his own safety, whether it was proper to permit in evidence testimony regarding funeral expenses, whether it was error to withdraw from the jury the defense of assumption of risk, and whether it was error to permit testimony of the surviving widow's mental suffering and illness and to instruct the jury that it could consider in its award the 'anguish, sorrow, stress, mental suffering, pain and shock' of the surviving widow resulting from the death of her husband.

At 9:38 p.m., on this evening, the deceased was seen standing on the hood of his 1959 Plymouth automobile approximately 35 to 40 feet south of the south end of the bridge, with his car pointing eastward. His rear wheels were off the pavement on the west side of the road. The deceased was smoking a cigarette at the time. Though his car was surrounded by water, it was not in the main flow of the current. The water rose rapidly between 9:30 and 10 p.m. By 10 p.m., this car had been pushed by the flow of the water to within 12 to 14 feet of the bridge and the deceased's car had been turned upside down by the current. At this time, deceased was standing on the top of the underside of his car. A policeman (Clark) walked out on the bridge, and, holding onto the railing, extended a foot towards the deceased, inviting him to grab hold with the intent of trying to pull the deceased to safety. According to this policeman, the deceased appeared frightened, and did not jump. Shortly thereafter both the deceased and his car were washed past the bridge and down into the arroyo where they disappeared in the torrent. The deceased's body was recovered later several miles downstream.

SUDDEN EMERGENCY INSTRUCTION

Over the defendant's objections, a 'sudden emergency' instruction was given. We find no error in this ruling. While this instruction has been criticized as being 'argumentative' ¹, and while no case has been called to our attention in this jurisdiction in which the Refusal to give this instruction was held to be reversible error, our Supreme Court has approved the Giving of the instruction when, taking the facts most favorably to the giving of the instruction, there is evidence of a sudden 'crisis'. Gilbert v. Quinet, 91 Ariz. 29, 33--34, 369 P.2d 267, 270 (1962). Under this holding, we believe that, at least at the time that Officer Clark was extending his foot on the southwest edge of the bridge, there was something that might be called a sudden emergency. Up until shortly before this, the situation of the deceased was not obviously critical.

The development of this crisis which threatened death or serious bodily injury could by reasonable persons be regarded as 'sudden'. At this moment, the deceased had the choice between jumping and staying with his vehicle. He was obviously frightened. The instruction may have assisted the jury in determining whether he was negligent at that moment. See Fulton v. Johannsen, 3 Ariz.App. 562, 564--565, 416 P.2d 983, 985--986 (1966).

INSTRUCTION ON PRESUMPTION OF DUE CARE

Over objection, the court gave the following instruction:

'If you find that there is no credible evidence on the question of whether the deceased in this case exercised due care for his own safety just before he was killed, then you must presume that he did exercise due care. The law presumes that the deceased did exercise due care unless the contrary is made to appear.'

We agree with the appellant that the giving of this instruction was error, but we find no prejudice. We have recently dealt with this same problem in Kovrig v. Vasquez, 10 Ariz.App. 101, 456 P.2d 947 (1969). In that case, we decided that the giving of this instruction, when there is evidence of contributory negligence, is error, because under our law this presumption is regarded as one of the "bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts." Seiler v. Whiting, 52 Ariz. 542, 549, 84 P.2d 452, 455 (1938).

However, the instruction does not inject any new theories into the case, but merely repeats a standard instruction, given in this case, that the burden of proof to show negligence is upon the party asserting it. Hence, we refuse to reverse for this error.

EVIDENCE REGARDING FUNERAL EXPENSES

Though there is a diversity of authority, the majority view appears to be that there may be recovery for funeral expenses in a wrongful death action. See Annot., 3 A.L.R.2d 932. On appeal, the appellant does not question this majority law, but complains there was no evidence here that the plaintiff was liable for the expenses incurred or that plaintiff had paid them. However, the City did not object to the evidence as it came in upon this grounds, nor did it raise this objection at the time of trial. Hence, this objection, upon which it now predicates this appeal, is waived. Milam v. Milam, 101 Ariz. 323, 419 P.2d 502 (1966).

ASSUMPTION OF RISK

We see no evidence which necessarily leads to the conclusion that the deceased assumed the risk of his own injury and hence find no error in the refusal to give an assumption of risk instruction. While the deceased may have been faced with a situation that should have given warning that his engine might drown out in going down this street, it is pure speculation to say that he realized that any condition created by the defendant created a risk of serious bodily injury or death and that he accepted this condition willingly.

The deceased was a long-time resident of Wisconsin and had come to Arizona approximately sixteen months prior to his death. There is no showing that he had ever experienced a flash flood such as we have in Arizona. It was night when he came upon this situation; the street was unlighted and without flare pots or barricades. The evidence would indicate that the deceased was traveling from south to north when his car became flooded out and that this happened before he came into the area where the water was running the fastest. All witnesses who testified in this case, most of whom were long-time residents of Tucson, indicated that the situation was deceiving and that, unless one knew the particular road, there would be no way to realize the depth of the water until one got into it. There is no evidence that the deceased ventured out into these waters as a thrill seeker or that he in any way approved of the condition that resulted in his death.

In City of Tucson v. Holliday, 3 Ariz.App. 10, 411 P.2d 183 (1966), this court said:

'We hold that (before there is sufficient evidence to submit issue of assumption of risk to the fact finder) there must be some element of acceptance of the defendant's negligence which indicates a willingness on the part of the plaintiff to take his own chances as far as the particular risk created by such negligence is concerned.'

3 Ariz.App. at 17, 411 P.2d at 190.

In Holliday, we quoted with approval from Terry v. Boss Hotels, Inc., 376 S.W.2d 239, 248 (Mo.1964):

"The circumstance in which reliance on the doctrine of assumed or incurred risk will be approved are exceptional."

3 Ariz.App. at 18, 411 P.2d at 191.

As in Holliday, we distinguish the fact situation here from cases like Miller v. George F. Cook Construction Co., 91 Ariz. 80, 370 P.2d 53 (1962), by reason of the lesser apparency of the risk. We hold that the trial court was within the bounds of its discretion in refusing to give an assumption of risk instruction.

EVIDENCE AND INSTRUCTIONS ON MENTAL SUFFERING OF THE WIDOW ²

Over an objection of irrelevancy, the plaintiff was permitted to show that, commencing in March of 1963 (approximately a year and a half after the death of her husband), she was hospitalized on three occasions for an emotional condition; that she has been treated by a psychiatrist since January of 1964; that s...