O'Donnell v. Maves
| Decision Date | 26 January 1972 |
| Docket Number | No. 10336,10336 |
| Citation | 108 Ariz. 98,492 P.2d 1205 |
| Parties | Donald O'DONNELL and Margaret O'Donnell, husband and wife, Appellants, v. Keith Kay MAVES and Shirley Maves, husband and wife, Appellees. |
| Court | Arizona Supreme Court |
James E. Grant, Phoenix, for appellants.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Thomas A. McGuire, Jr., Phoenix, for appellees.
This is an appeal from a second trial of an automobile accident. A jury returned a verdict for Keith Kay Maves and Shirley Maves at the conclusion of the first trial, and Donald O'Donnell and Margaret O'Donnell appealed. That appeal resulted in a reversal and a remand for a second trial because of an erroneous jury instruction, O'Donnell v. Maves, 103 Ariz. 28, 436 P.2d 577. On the second trial, the jury again found in favor of the Maves, and O'Donnell again appeals. Judgment affirmed.
O'Donnell was struck from the rear in a collision caused by a sudden brake failure in the Maves vehicle. He urges that he should have been awarded a directed verdict as to negligence in trial court because the defendant's failure to conform to A.R.S. § 28--952, requiring every motor vehicle to be equipped with adequate brakes, constitutes negligence per se. The issue presented has previously been decided adversely to the plaintiffs not only by those Arizona courts which have passsed upon it, See Conner v. Brkich, 14 Ariz.App. 208, 481 P.2d 894; Caruth v. Mariani, 10 Ariz.App. 277, 458 P.2d 371; Dayton v. Palmer, 1 Ariz.App. 184, 400 P.2d 855, but by a majority of courts from other jurisdictions as well. For the latest cases in accord with the holding in Arizona, See Maloney v. Rath, 69 Cal.2d 442, 71 Cal.Rptr. 897, 445 P.2d 513 (196); Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120 (1964); Cartwright v. Firemen's Ins. Co. of Newark, New Jersey, 254 La. 330, 223 So.2d 822 (1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971); Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730 (1970). Contra Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890 (1965). Only where, admitting the violation, the defendant fails to offer any legal excuse can negligence be said to exist as a matter of law. Lochmoeller v. Kiel (Mo.App., 1940), 137 S.W.2d 625.
Testimony in the instant case established that the brakes had failed due to a rupture caused by the rubbing of the gasoline tank against the brake line. This rubbing occurred only when the vehicle was heavily loaded. The point of rupture was not visible upon inspection unless the vehicle was heavily loaded at the time of inspection and, consequently, in an extended position. We hold that when it is shown that the statute...
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Brannigan v. Raybuck, 16337-PR
...as a matter of law, but under proper facts the jury may be allowed to find that the violation was excusable. 1 O'Donnell v. Maves, 108 Ariz. 98, 100, 492 P.2d 1205, 1207 (1972); Platt v. Gould, 26 Ariz.App. 315, 316-17, 548 P.2d 28, 29-30 In dram shop cases, then, a licensee who has violate......
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...the issues of negligence and proximate cause remained to be determined by the jury under proper instruction. See O'Donnell v. Maves, 108 Ariz. 98, 492 P.2d 1205 (1972). In our opinion, under the circumstances of this case, the trial court properly refused the Tucker v. Collar, Supra, forese......
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