Keck v. Kelley

• Decision Date: 11 January 1972
• Docket Number: CA-CIV,No. 1,1
• Parties: John Carl KECK et al., Appellants, v. Robert A. KELLEY, Appellee. 1353.
• Court: Arizona Court of Appeals

Page 412

492 P.2d 412

16 Ariz.App. 163

John Carl KECK et al., Appellants, v. Robert A. KELLEY, Appellee.

No. 1 CA-CIV 1353.

Court of Appeals of Arizona, Division 1, Department A.

Jan. 11, 1972.

Rehearing Denied Feb. 9, 1972.

Jennings, Strouss & Salmon, by John S. Hobbs and Jon L. Kyl, Phoenix, for appellants

Langerman, Begam & Lewis, by Samuel Langerman and Kenneth P. Clancy, Phoenix, for appellee.

STEVENS, Presiding Judge.

The motor vehicle accident which gave rise to the Superior Court trial and to this appeal occurred on Interstate 10 in the State of New Mexico approximately 21 miles east of Lordsburg, New Mexico, shortly after midnight on the morning of 23 December 1966. At that point Interstate 10 was straight and level. It was a divided highway. Westbound traffic utilized the north portion of the highway. From south to north of the north or westbound traffic portion of the divided highway there was a 4-foot improved shoulder; then two driving lanes, each 12 wide which lanes were separated by a broken white line; and then an emergency parking area at the extreme north part of the pavement. The emergency parking area was approximately 10 4 wide, and was separated from the north driving lane by a solid white line. North of the emergency parking lane there was a wide borrow pit between the paved highway and the north fence line of the right-of-way. The footage of drop and the angle of drop from the north paved edge of the emergency lane to the level portion of the borrow pit was sharply in dispute and is not clear from the record.

Robert A. Kelley and Edward L. Hardy were injured. They are residents of California. Together as plaintiffs they filed their suit to recover damages, the action having been filed in the Superior Court for Maricopa County, Arizona, on 20 December 1968. The defendants were John Carl Keck and Charles Snyder along with their wives. The defendants were residents of Arizona. Keck and Snyder were partners. At the time in question, the equipment which was involved in the accident in which Kelley and Hardy were injured was being moved in furtherance of the Keck and Snyder partnership business. The procedural aspects of the trial which commenced on 29 October 1969 were governed by Arizona law and the substantive rights of the parties were governed by New Mexico law.

Hardy recovered a judgment in the sum of $100,000.00 which was settled and a release was given on 11 February 1970. The issues as to Hardy are now moot and we limit ourselves to the claim of Kelley. Kelley recovered a judgment for $37,500.00. The amount of the judgment is not questioned on appeal but it is urged that there were errors in the trial court which require a reversal of the judgment which now stands in Kelley's favor. Since the perfecting of the appeal Snyder has died and the appeal has been carried forward.

At the time of the accident Kelley and Hardy were both employees of the Consolidated Copperstate Lines. At the time in question they were engaged in driving over Interstate 10 from El Paso, Texas, to their destination in California. Their equipment was a tractor and a semitrailer which was fitted with a sleeping compartment. Kelley started the trip as the driver and Hardy went to sleep soon after leaving El Paso. Hardy was not aware of the happenings of the evening until he was awakened by the accident. The defendants urged and now urge that Kelley was negligent. The question as to whether the defense of Kelley's alleged contributory negligence could be urged in relation to the Hardy claim is now moot.

Snyder was driving a tractor and a flatbed semitrailer loaded with farm equipment from Herne, Texas to Chandler, Arizona. The flatbed trailer was 8 wide. Some days prior to the accident in question and in the vicinity of Anthony, New Mexico, also on Interstate 10, Snyder experienced motor trouble. He was able to maneuver his equipment onto the emergency parking lane After Snyder had checked his equipment he hitchhiked to a place where he could secure accommodations. Arrangements were made with the garage in Anthony where the tractor had recently been repaired, these arrangements being to tow the tractor to Anthony for further repair. During the morning of the 16th he returned to his parked equipment and found that the wrecker had arrived before him.

and the loaded semitrailer was left in the emergency parking lane for several days while the tractor motor was being repaired. After the motor repair, Snyder again attached the tractor to the parked semitrailer and proceeded through Deming, New Mexico, toward Lordsburg, New Mexico, en route to Chandler, Arizona. About midafternoon on 15 December 1966, his motor again experienced serious mechanical difficulties. Snyder estimated that his speed at the time of this occurrence was approximately 45 to 50 miles per hour and the posted speed limit was 70 miles per hour. Upon experiencing the motor trouble, Snyder promptly disengaged the clutch and coasted onto the emergency parking area, this being the location of the accident now in question. There is a sharp dispute as to the exact location of the trailer bed and the trailer wheels in relation to the solid white line which divided the northerly 12-foot driving lane from the emergency parking lane.

Snyder did not check to see whether the red reflectors which he testified he had placed to the rear of the disabled equipment were still in place. His testimony as to the placing of the red reflectors was the only testimony to the effect that red reflectors had been put in place after the equipment had become disabled on the afternoon of the 15th. The evidence was without dispute that, while the tractor and semitrailer were attached to each other, it would have been a simple matter to tow them further toward the north edge of the emergency parking lane or to some location off the emergency parking lane other than onto the borrow pit area. There was a conflict in the evidence as to whether the Snyder tractor with the semitrailer attached could have angled off onto the borrow pit area without tipping. On the morning of the 16th the wrecker was attached to the tractor, the landing gear of the semitrailer was lowered and the fifth wheel was disengaged. The tractor was then towed to Anthony. The semitrailer with the landing gear down would have been difficult to move. The evidence indicates that the loaded semitrailer remained without being moved until the accident in question.

Snyder did not notify any New Mexico law enforcement official as to the location of the disabled semitrailer. Shortly after the loaded semitrailer was left on the emergency parking lane at least two Greyhound bus drivers experienced near misses and notified New Mexico law enforcement officials that the semitrailer was a hazard. Kelley had no knowledge of the fact of the location of the parked semitrailer.

Prior to the filing of the personal injury suit now in question a suit had been filed in Maricopa County seeking recovery for the property damage sustained by the semitrailer and the farm equipment. At one stage of the proceedings the property action and the personal injury action were consolidated. Later they were severed and the two complaints remained severed at the time of the trial in question. The defendants urge error in the severance. The complaint in the property damage action is not before us nor is the record clear as to the basis upon which the severance was granted. In our opinion the record before us does not enable as to rule upon this contention.

The exact location of the semitrailer was in sharp dispute. There was also a dispute as to whether any portion of the equipment which Kelley was driving was above or to the north of the solid line. Just prior to the impact Kelley was driving at the extreme north edge of the north traffic lane to enable a car and trailer to pass him. He was driving well within the speed limit in a westerly direction. Moments after the car and trailer had passed him, he saw the vague outline of the loaded, parked semitrailer.

He tried to take evasive action, and he believed that he had been successful when the crash occurred. The exact point of impact on the Kelley equipment was not established. After the impact, the Kelley vehicle crossed the south driving lane for westbound traffic, turned over and came to rest facing easterly.

NEED THE PLAINTIFF ALLEGE GROSS AND WANTON NEGLIGENCE?

The personal injury complaint alleged negligence and did not allege gross or wanton negligence. The answer set up the defense of contributory negligence which in New Mexico may be established as a matter of law (See Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967)), rather than always being a question of fact as under Arizona's Constitution. See Art. 18, § 5, A.R.S. Apparently shortly before the trial the attorney for the plaintiffs informed the attorney for the defendants that without alleging new facts the plaintiffs would seek to amend their complaint to allege that the defendants were guilty of gross and wanton negligence. Such a motion was made on the day of the trial and resisted. The trial judge declined to grant the motion and advised counsel that at the time of the settling of the instructions he would review the evidence and then decide whether it was proper to instruct on gross or wanton negligence. We find no error in this ruling. In our opinion a plaintiff need not allege gross and wanton negligence in order to avail himself of its use, if present under the evidence, to offset the defense of contributory negligence. We recognize that complaints in personal injury actions at times allege that the defendant was guilty of gross and wanton negligence. The presence of gross and wanton negligence may counter the effectiveness of the defense of contributory negligence. Rule 8(d) of the Rules of Civil Procedure, 16 A.R.S., requires that the defense of contributory negligence be affirmatively plead. We do not...