Dennis v. Stukey
| Decision Date | 15 December 1930 |
| Docket Number | Civil 2928 |
| Citation | 37 Ariz. 299,294 P. 276 |
| Parties | V. R. DENNIS, Appellant, v. CLARENCE A. STUKEY, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yavapai. A. S. Gibbons, Judge. Judgment affirmed.
Messrs Moore, Elliot & Shimmel, for Appellant.
Messrs Anderson, Gale & Stack, for Appellee.
V. R Dennis was constructing, under contract for the state highway commission, that portion of the Prescott-Ash Fork highway commencing at or near the eastern limits of the city of Prescott and extending northerly some six or seven miles. On the 6th of September, 1928, he had finished the paving (except the rolling of the surface thereof) of a section of said road from the city limits of Prescott to a point where the Sheldon Street road crosses the Prescott-Ash highway, a distance of something like 2,100 feet. The paved portion of this road was 20 feet in width. The roller used in rolling pavement was about nine feet high and eight feet wide. After the day's work on September 6th, it was parked on the paved road in said section so that it occupied about nine of the 20 feet thereof.
Plaintiff Stukey, with one Haining driving plaintiff's Chrysler sedan, about one o'clock on that night went out from Prescott on the Sheldon Street road, near which was Haining's home. Before reaching Haining's home they concluded to take a drive into the country. They passed the Haining home, crossed the Prescott-Ash Fork highway at its junction with the Sheldon Street road, proceeded north on a detour road for some distance, and then returned the same way they had gone out until they arrived at the junction of the two roads. At this point, instead of following the Sheldon Street road back to Haining's home or Prescott, they turned on to the paved section of the Prescott-Ash Fork highway and, while driving on the right side of the road, about 500 feet from the junction, ran into the roller, and as a result the Chrysler sedan was practically demolished. This action is brought to recover damages to the car, loss of its use, and for drayage and storage charges.
Plaintiff alleges in his complaint that the defendant had "failed to provide and keep burning any lights or other indications warning persons traveling upon said highways of the presence of said road roller . . ."; that "the night being too dark to distinguish objects in said highway and (plaintiff and Haining) being blinded by the lights of an approaching car, plaintiff's said automobile crashed into and collided with said roller. . . ."
The defense, in addition to a general denial, was that the piece of road where plaintiff's automobile was damaged was closed; that signs, barriers and lights were placed at the point where plaintiff came into said highway showing that it was closed to the traveling public, and that plaintiff and Haining had actual knowledge that such portion of the road was under construction and dangerous; that the Sheldon Street road was open, safe and a shorter route to their destination than the road they took; that Haining, who was driving, operated the car at so fast a rate of speed that he could not avoid striking the roller within the distance lighted by the headlights of the Chrysler automobile; that he lost control of the car, and for all of said reasons plaintiff proximately contributed to the damage of his property.
The jury returned a verdict for plaintiff and judgment was entered thereon. The defendant appeals from the judgment and from the order overruling his motion for a new trial. He assigns several reasons for his appeal, the principal of which reasons may be reduced to two propositions, stated in defendant's own language, as follows:
The evidence was sharply in conflict as to whether the piece of road where the accident happened was open to the public or not. The testimony of plaintiff's witnesses was that no barriers or signs or lights were placed at the junction of the Sheldon Street road and the Prescott-Ash Fork highway or on the roller, and that the general public was traveling over this particular piece of road. This testimony was flatly disputed by defendant's witnesses. The decision of this controverted fact was one for the jury, and since the verdict was for plaintiff, we will have to assume that the road was open to the general public and that plaintiff was rightfully thereon when his automobile struck the roller.
The evidence is undisputed that plaintiff's automobile was going 20 miles an hour and that for 250 feet from the roller he and his driver were both blinded by the headlights on an automobile approaching from the opposite direction so that they could not see the roller until within a distance of four or five feet of it; that they did not stop or reduce their speed and when they did see the roller they were so close to it that they could not stop in time to prevent the collision.
The court correctly instructed the jury "that when the driver of an automobile is blinded by the lights of another car it is his duty to bring his car to such control that he can stop immediately, and that if he cannot then see he must stop," and that if they believed by a preponderance of the evidence plaintiff's failure under the circumstances to stop or to have control of his car contributed to the accident, they should return a verdict for defendant.
The rule fixing the duty of the driver of an automobile who is blinded by the lights of an approaching automobile is well stated in Ruth v. Vroom, 245 Mich. 88, 62 A.L.R. 1528, 222 N.W. 155, 156, as follows:
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State v. Fischer
...his duty of granting a new trial. He should exercise his power to prevent injustice as well as to promote justice.Dennis v. Stukey , 37 Ariz. 299, 307, 294 P. 276, 279 (1930), overruled on other grounds by Butane Corp. v. Kirby , 66 Ariz. 272, 284, 187 P.2d 325, 333 (1947). Appellate courts......
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Schmidt v. Gibbons
...as a fact contribute to the injury the jury May find in favor of the plaintiff and this court cannot direct a new trial. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276, rehearing denied, 37 Ariz. 510, 295 P. 971; Campbell v. English, supra. In other words, the court should advise the jury what,......
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...the case upon which the court there relied, Sovereign Camp Woodmen of the World v. Thiebaud, 65 Kan. 332, 69 P. 348; and Dennis v. Stukey, 37 Ariz. 299, 294 P. 276, rehearing denied 37 Ariz. 510, 295 P. 971; and have come to this conclusion: A motion for new trial upon the ground the verdic......
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State v. Turner, 1230
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