Esquivel v. Nancarrow

• Decision Date: 06 February 1969
• Docket Number: No. 8597,8597
• Parties: David ESQUIVEL and Ophelia Esquivel, his wife, Appellants, v. Jack NANCARROW et al., Appellees.
• Court: Arizona Supreme Court

Page 399

450 P.2d 399

104 Ariz. 209

David ESQUIVEL and Ophelia Esquivel, his wife, Appellants, v. Jack NANCARROW et al., Appellees.

No. 8597.

Supreme Court of Arizona, In Banc.

Feb. 6, 1969.

Rehearing Denied March 4, 1969.

Healy, Laubscher & Dickerson, by Vernon F. Dickerson, Tucson for appellants.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by Thomas A. Zlaket, Tucson, for appellees.

McFARLAND, Justice:

Appellants David and Ophelia Esquivel brought this action to recover for the death of their three-and-a-half-year-old son 'Rickey,' who was killed by an automobile driven by defendant Nancarrow.

Appellants list twelve assignments of error. The first two pertain to the admission of evidence to which they objected; the next five pertain to the trial court's refusal to give requested instructions; the last five pertain to instructions given over appellants' objections.

The accident took place at night, in Tucson, Arizona, on a dimly-lighted portion of Speedway Boulevard, which, at that time and place, was heavily traveled, and consisted of two Eastbound lanes and two Westbound lanes. Defendant-appellee Nancarrow was driving west in the lane nearest the north curb with his car's lights on. There were cars ahead and behind him, and cars coming toward him in the Eastbound lanes. There was evidence that he had been drinking, and that he was driving at approximately the speed limit of thirty-five miles per hour. Suddenly he saw almost immediately in front of his car two six-year-old boys running across Speedway from south to north. He braked lightly and swerved to avoid hitting them, and then heard and felt a thump. He immediately stopped, and ran back to flag oncoming cars, but was unable to prevent two more cars from running over a third boy, age three and a half, lying in the street, though there is some dispute as to whether those cars actually struck the child or merely straddled him as they passed over him. The three children were crossing the street together, with the two older ones slightly ahead of the younger one. All three were 'running fast.' Nancarrow did not see the third boy at all before the impact.

In Assignment of Error No. 8, appellants complain of an instruction given by the court to the effect that Arizona law requires a pedestrian, attempting to cross a street at a point other than at a crosswalk, to yield the right of way to all vehicles on the street. The objection is that this instruction directly contradicts another which told the jury that a three-and-a-half-year-old child is incapable of contributory negligence.

The point is well taken. Although the Arizona law which requires pedestrians crossing at places other than crosswalks, to yield to vehicles, applies to all persons, adult, and children alike, it cannot be the basis of attributing contributory negligence to a child of the tender years of the deceased. Therefore, it was not only unnecessary, but confusing to the jury.

Some light on the reasons for this instruction may be found in the colloquy in chambers at the time the instructions were settled. The following appears in the reporter's transcript of the record:

'By the Court: Here is maybe what I can do, like your number two. If I started out 'considering the circumstances surrounding the conduct of the defendants, you may consider the following:'

'By Mr. Dickerson: 'but you are not to consider this as contributory negligence on the part of the child.'

'By the Court: At the end of the instruction * * * I will remind them again * * * 'the law does not provide that a child of four years of age can be contributorily negligent.' I can put that in.

'By Mr. Briney: 'I thought you had already covered that.'

'By the Court: What Vern is saying is that he thinks I ought to point that out again right close to this instruction * * *

'By the Court: * * * I give him a birthday cake with candles on it and he wants a stand to put it on. I wish I had wrote (sic) that down when I said it, because the way I said it was awful (sic) good. * * * This is going to read 'In considering the conduct of the defendants on the issue of whether or not the defendants were negligent, you are instructed that the law of Arizona provides that every pedestrian. * * *' Yes, that will be given as modified. That Briney is a persuader.'

In other words, it was the court's idea that, by prefacing his reference to the law concerning pedestrians with the words 'In considering the conduct of the defendants,' he was preventing the jury from thinking that the child was governed by that instruction. We cannot be sure that the instruction would have that effect. It was confusing, and could have been understood as contradicting the instruction on the child's contributory negligence. Worst of all, it was not applicable to the facts in the case, as there was no adult pedestrian involved. In Pacific Greyhound Lines v. Uptain, 81 Ariz. 359, 306 P.2d 281, and in City of Phoenix v. Mubarek Ali Khan, 72 Ariz. 1, 229 P.2d 949, the following statement was quoted from an opinion of this Court in Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325:

'An instruction not based upon the evidence in the case is misleading and calculated to induce the jury to suppose that such a state of facts, in the opinion of the court, is possible and may be considered by them.'

In Glenn v. Chenowth, 71 Ariz. 271, 226 P.2d 165, this Court made the following statements:

'* * * Abstract propositions of law even though correct are not favored in Arizona.

'It is a well-settled proposition of law that instructions must not be conflicting or contradictory. (Cases cited.) * * *'

In the case of Daun v. Truax, 56 Cal.2d 647, 16 Cal.Rptr. 351, 365 P.2d 407, the Supreme Court of California had before it almost exactly the same conflict in the instructions, although the instructions in that case went further and stated that the violation of the statute was negligence per se. That additional fact, however, does not invalidate the court's reasoning. It said:

'Reliance is had on the well-settled rule that instructions must be read together, and, it is urged, that, when so read, any conflicts in the instructions disappear * * * It is quite clear * * * that the instructions are not only ambiguous but actually conflicting.'

In Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267, we had before us a case of a child crossing a street in front of a bus. The trial court instructed the jury that the bus driver might assume that others would not violate the law, and then instructed on the duty of care of a small child. As in the instant case, contributory negligence of the child was not in issue. We said:

'* * * A defendant's negligence is not dependent upon what he might have foreseen as to a particular plaintiff, but upon the foreseeability of danger of harm to anyone in the plaintiff's position. * * * A bus driver who fails to keep a proper lookout * * * is not any less negligent when he runs into a knowledgeable seven year old than when he runs into a toddling two year old, though in the former case he may have a defense of contributory negligence. * * *'

Appellants also complain that it was error to instruct the jury on unavoidable accident. Since the case was tried, in Trickel v. Rainbo Baking Co., 100 Ariz. 222, 412 P.2d 852, we held that 'it is always error to give an instruction on unavoidable accident.' However, the above instruction makes the unavoidable-accident instruction even more objectionable, as the jury might conclude since the child was crossing at a point other than a crosswalk, it was an unavoidable accident. For these reasons we conclude that the case must be reversed.

Since the case must be remanded for a new trial, we will make some observations on the other assignments of error, many of which would not otherwise be considered, because the objections were not timely made, or were not sufficiently specific. Appellants claim that the trial court erred in allowing a police officer to answer the following question:

'Based upon your experience would you say that anything was brought to your attention that would indicate that Mr. Nancarrow was intoxicated?'

Appellants' objections are that the question calls for an opinion, and that foundation laid was insufficient. The case they cite to support their view--Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849--is not in point. The rule is well-settled, and nearly universal, that lay witnesses who have had a sufficient opportunity to observe a person may testify as to whether that person appears to be intoxicated. Randal v. Deka, 10 Ill.App.2d 10, 134 N.E.2d 36; Guedon v. Rooney, 160 Or. 621, 87 P.2d 209, 120 A.L.R. 1298; Udall on Arizona Evidence, page 39. Prior to asking the question, the examining attorney had the witness describe the extent of his observation. It is for the jury to determine the weight to be given the opinion.

Appellants next contend that the trial court erred in admitting parts of a statement made by defendant Schwatken, in writing, to an insurance adjuster, because the parts objected to were not against interest and were hearsay.

Appellants themselves offered part of the statement as an admission against Schwatken, after first being warned by the court that if they did so, opposing counsel would be permitted to offer the rest of the statement. Since the statement was offered against defendant Schwatken, and since he is no longer involved in this lawsuit and cannot be a party at the new trial, we do not deem it necessary to go into the merits of this assignment of error.

Appellants also contend that the court should have given their requested instruction No. 3 which purported to instruct the jury that a driver who sees, or should see, a child in the street must make every effort to avoid striking him. The instruction is erroneous in requiring a party to make every effort to avoid striking a child he does not see. The undisputed evidence showed defendant did not see the child.

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