Davis v. Weber, 7056
| Citation | 93 Ariz. 312,380 P.2d 608 |
| Decision Date | 10 April 1963 |
| Docket Number | No. 7056,7056 |
| Parties | Randle DAVIS, Personal Representative of Pamela Sue Davis, Patricia Gail Davis, and Jackie Wayne Davis, Deceased, Appellant, v. Buck WEBER, dba Weber Drilling Company, and Alfred Wallace Bauer, Appellees. |
| Court | Supreme Court of Arizona |
Hash & Bernstein, Phoenix, for appellant.
Snell & Wilmer, Phoenix, for appellees.
Appellant herein, Randle Davis, commenced an action in the court below to recover damages for the wrongful death of Jackie Wayne Davis, his minor son, and for the personal injuries sustained by Pamela Sue Davis and Patricia Gail Davis, his minor daughters. From the granting of a motion for a directed verdict at the close of plaintiff's evidence, this appeal has been perfected.
The record discloses that on the 5th of December, 1957, at approximately 11:30 A.M. plaintiff's wife, Hazel Davis, was driving a 1957 Chevrolet on Peoria Avenue, a public highway in Maricopa County, Arizona. Riding with their mother were the three children, Pamela Sue Divis, age three, Jackie Wayne Davis, age four and Patricia Gail Davis, age five. At the intersection of Fifty-ninth Avenue, also a public highway, the Davis vehicle collided with a truck and trailer owned by defendant, Buck Weber, a well driller, driven by defendant, Alfred Wallace Bauer. As a result of the accident Mrs. Davis and the child Jackie Wayne were killed and the two other children suffered injuries. Defendants' motion for a directed verdict was on the grounds that there was no evidence of negligence on their part proximately causing or contributing to the accident and the resulting injuries. This appeal tests the correctness of the ruling on defendants' motion.
Certain rules of law are applicable here with which neither party quarrels. A defendant's motion for a directed verdict admits the truth of whatever evidence the opposing party has introduced and any inferences reasonably drawn therefrom. Joseph v. Tibsherany, 88 Ariz. 205, 354 P.2d 254. On such a motion the evidence must be treated and viewed in a light most favorable to the party against whom the motion is sought. Mutz v. Lucero, 90 Ariz. 38, 365 P.2d 49. The motion should be granted only where the evidence is not sufficient to support a contrary verdict or so weak that a court would feel constrained to set aside such a verdict on a motion for new trial. Costello v. Wood, 89 Ariz. 270, 361 P.2d 10; Casey v. Beaudry Motor Company, 83 Ariz. 6, 315 P.2d 662. Bearing these rules in mind we believe that the facts and reasonable inferences to be drawn point only to one conclusion: that the trial court did not err in granting defendants' motion.
The Weber vehicle at the time of the accident was traveling south on Fifty-ninth Avenue. The collision occurred within the intersection of the two highways. Both Avenues were approximately 40 feet wide, the centers of which had 21 feet of asphalt topping. Fifty-ninth Avenue was a through boulevard controlled by boulevard stop signs. The approach to Fifty-ninth Avenue from the west on Peoria Avenue had two signs, a stop sign at the southwest corner of the intersection and a 'Stop Ahead' warning sign 222 feet west of the stop sign. The stop sign itself was placed some 30 feet west of the intersection lines of the junction of the paved portion of the highways.
Defendants' vehicle consisted of a 1954 GMC Truck pulling a flatbed trailer, the whole unit being of a length of 50 feet and weighing about 6,000 pounds. The truck had passed through the intersection when the collision occurred. The point of impact was 3 feet east of the paved portion of the west line of Fifty-ninth Avenue and 11 feet south of the paved portion of the north line of Peoria Avenue. 38 feet of skid marks were laid down by the Davis vehicle beginning west of the intersection back of the stop sign and extending to the point of impact.
The front end of the Davis car was caught between the truck and trailer at the drawbar and the entire vehicle carried 140 feet south along Fifty-ninth Avenue before being dislodged. No attempt was made to establish that defendant was exceeding the speed limit and no assertion is now made that there is an inference of excessive speed. The northwest corner of Peoria Avenue and Fifty-ninth Avenue contained a high stand of cotton which at least in part obstructed the vision of the drivers of both vehicles. At the time of the trial two years after the accident Bauer testified without contradiction that he was keeping a normal lookout for passing cars but could not remember sceing the plaintiff's vehicle prior to the impact.
As example:
Plaintiff offered the testimony of Partricia Gail Davis, his daughter, as an eyewitness to what happened. At the time of the accident she was five years old and at the time of the trial seven. The court in the absence of the jury examined Patricia Gail as a proposed witness in this manner:
'* * * Q. What did your mother do when she came to that street?
'A. She stopped.
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'Q. Now, after the car stopped, what happened?
'Q. Jackie fell down on the floor board.
* * *
* * *
'Q. Is that your brother's name?
'A. Yes sir.
* * *
* * *
'Q. Do you know what made him fall?
'A. No sir.
'Q. Had you?
'A. No.
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While the court thereafter permitted Particia Gail to testify as a witness in the case, the case, the foregoing is the most lucid account of her version of the accident.
Plaintiff urges that his daughter's testimony established that the Chevrolet was stopped and was struck by the leading edge of defendants' trailer. Accordingly, he argues from the failure of the driver to swerve his vehicle so as to avoid the Chevrolet negligence can be inferred that Bauer was not keeping a proper lookout. No claim is made that the Davis vehicle was struck by the truck itself.
It is the settled law in this state that the trial court must examine children under ten years of age to determine whether they are capable of receiving just impressions and relating them truly. A.R.S. § 12-2202. The trial judge's ruling on the introduction of a child's testimony will not be disturbed except in the case of a clear abuse of discretion. Keefe v. State, 50 Ariz. 293, 72 P.2d 425.
Since the only testimony in the case, that the Davis vehicle was at rest when struck by the Weber vehicle, is from the lips of Patricia Gail, the crux of this appeal lies in the question whether the trial court in passing on the motion for...
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