Flashberg v. Krebs

• Decision Date: 26 September 1968
• Docket Number: CA-CIV,No. 1,1
• Parties: Jack FLASHBERG and Esther A. Flashberg, his wife, Appellants, v. W. T. KREBS and John Romanesky, dba Fire King Battery Company, and Roland F. Adams, Appellees. 360.
• Court: Arizona Court of Appeals

Page 456

445 P.2d 456

8 Ariz.App. 254

Jack FLASHBERG and Esther A. Flashberg, his wife, Appellants, v. W. T. KREBS and John Romanesky, dba Fire King Battery Company, and Roland F. Adams, Appellees.

No. 1 CA-CIV 360.

Court of Appeals of Arizona.

Sept. 26, 1968.

Rehearing Denied Oct. 31, 1968.

Review Denied Dec. 17, 1968.

Langerman, Begam & Lewis, by Frank Lewis, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by James H. O'Connor and Thomas A. McGuire, Jr., Phoenix, for appellees.

GOODING, Judge of the Superior Court.

This appeal involves a claim for personal injuries arising out of a rear-end collision. Plaintiffs appeal from a jury verdict in favor of defendants. The parties will be referred to in the singular.

The questions raised on this appeal are concerned primarily with the defense of contributory negligence.

Plaintiff was proceeding east on Thomas Road in Phoenix and stopped for a red light at the wise triple intersection of Grand Avenue, Thomas Road and 27th Avenue. After the signal changed, plaintiff turned right onto Grand Avenue, went a short distance and then stopped prior to entering the travel portion of 27th Avenue. The evidence is conflicting as to whether plaintiff stopped because of a red light controlling traffic on Grand Avenue or because of a car proceeding north on 27th Avenue. The evidence is also conflicting as to the suddenness with which plaintiff stopped. Defendant, who had also been driving east on Thomas Road, stopped for the red light, turned onto Grand Avenue and then collided with plaintiff's car when she stopped prior to entering 27th Avenue.

DIRECTED VERDICT

The first error claimed by plaintiff is the Court's refusal to grant plaintiff's motion for directed verdict on the issue of liability.

Plaintiff takes the position that defendant, by his own testimony, and by the testimony of his expert, had sufficient time to avoid the accident. Plaintiff then argues that she was under a duty to stop for the red light controlling Grand Avenue traffic before she entered the travel portion of 27th Avenue. We feel the evidence is conflicting as to whether defendant had time to avoid the collision. We also feel there was evidence from which a jury could conclude the plaintiff was negligent in stopping where she did and in the manner she did.

The Arizona Constitution clearly provides that the defense of contributory negligence shall at all times be left to the jury. A motion for directed verdict cannot be granted if there is any evidence showing, or tending to show, plaintiff was guilty of contributory negligence. The Court did not err in refusing to grant plaintiff's motion.

CONTRIBUTORY NEGLIGENCE

The second error claimed by plaintiff is the Court's giving any instruction on contributory negligence. This is the same problem discussed above and is not error for the reasons given.

Plaintiff also claims that the following contributory negligence instruction was erroneous:

'If, after a complete survey of this evidence and your deliberations, you have reached the conclusion that both of the parties were negligent, that the defendants were negligent in one or more of the particulars, and that likewise the plaintiff, Esther Flashberg, herself was negligent, as is alleged, in one or more of the particulars, and that such negligence contributed in some degree to the bringing about of the accident, then the plaintiff May not be entitled to a recovery.' (Emphasis supplied)

Section 5 of Article 18 of the Arizona Constitution, A.R.S. has been interpreted to mean that in its instructions to the jury, the trial court may not instruct the jury as to what its verdict Must be with respect to the defense of contributory negligence. Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).

Our Supreme Court has recently disapproved an instruction which directed the jury that if they found the plaintiff was guilty of contributory negligence and such was a proximate cause of his injury '(then) the plaintiff is not entitled to recover.' Schmidt v. Gibbons, 101 Ariz. 222, 418 P.2d 378 (1966).

Language similar to that used in the instant case was considered by the Supreme Court in Layton v. Rocha, supra. There, the instruction concerning contributory negligence read, in applicable part, that if both parties were negligent and such negligence proximately contributed to bringing about the accident '* * * the...