Kemp v. Pinal County

• Decision Date: 25 September 1970
• Docket Number: CA-CIV,No. 2,2
• Citation: 474 P.2d 840,13 Ariz.App. 121
• Parties: Effie L. KEMP, personal representative of the Estate of William Kemp, deceased, for and on behalf of herself as surviving wife and for and on behalf of Laura Marie Kemp, Collette Kemp, Collene Kemp, Lynn Ann Kemp and William T. Kemp, surviving children of said deceased, Appellant, v. PINAL COUNTY, a political subdivision of the State of Arizona, Appellee. 800.
• Court: Arizona Court of Appeals

Page 840

474 P.2d 840

13 Ariz.App. 121

Effie L. KEMP, personal representative of the Estate of William Kemp, deceased, for and on behalf of herself as surviving wife and for and on behalf of Laura Marie Kemp, Collette Kemp, Collene Kemp, Lynn Ann Kemp and William T. Kemp, surviving children of said deceased, Appellant, v. PINAL COUNTY, a political subdivision of the State of Arizona, Appellee.

No. 2 CA-CIV 800.

Court of Appeals of Arizona, Division 2.

Sept. 25, 1970.

Rehearing Denied Nov. 10, 1970.

Charles M. Wilmer, and Snell & Wilmer, by Mark Wilmer, Phoenix, for appellant.

Anderson & Holloway, by Jack Anderson, Phoenix, for appellee.

HOWARD, Chief Judge.

This is an action for wrongful death. The plaintiff appeals from a jury verdict in favor of the defendant, Pinal County.

On the night of February 5, 1965, the deceased attended a cocktail party and banquet at a hotel in Casa Grande, Arizona. He was seen drinking in the 'hospitality' room at 2:30 o'clock a.m. on February 6, 1965. At approximately 4:40 o'clock a.m., deceased approached the hotel security guard, Jess Baldwin, and asked him the way to the Maricopa-Casa Grande Highway. Baldwin gave him directions. The deceased was last seen alive driving away from the hotel in his 1962 Volkswagen into the early morning darkness.

There was evidence that the deceased had been drinking intoxicants since noon of February 5 and that when he left the hotel he was under the influence.

At 7:00 o'clock a.m., the sheriff arrived at the intersection of the Maricopa-Casa Grande Highway, the scene of a fatal one-car accident. Kemp was under the overturned Volkswagen, dead.

Since there were no eye-witnesses to the accident, expert testimony was introduced by the plaintiff in explanation of what had occurred. The testimony revealed that just prior to the accident deceased was traveling north on Anderson Road at between forty-six and fifty-two miles per hour; that Anderson Road intersects in a 'T' intersection with the Maricopa-Casa Grande Highway which runs east and west; that 193 feet before the intersection there is a railroad crossing, marked with railroad cross-bucks and a yellow warning sign; that the deceased failed to turn at the intersection, but instead, continued in a northerly direction across the intersection without braking his vehicle and into the desert where his vehicle overturned. There were no traffic signs indicating the existence of the intersection.

In the trial court the plaintiff contended that the defendant, Pinal County, was negligent in failing to erect signs warning of the existence of the intersection. Defendant contended that it was not negligent and defended on the basis of contributory negligence. In order to counter this defense it was the plaintiff's position at trial that Pinal County was guilty of gross negligence.

The plaintiff contends the court erred by including the following portion of A.R.S. § 28--701 in a negligence per se instruction:

'A. No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing * * *.

E. The driver of every vehicle shall, consistent with the requirements of subsection A, driver at an appropriate reduced speed when approaching and crossing an intersection * * * and when special hazards exist with respect to * * * weather or highway conditions.'

Relying on the authority of J. H. Welch & Son Contracting Co. v. Gardner, 96 Ariz. 95, 392 P.2d 567 (1964) and the authorities cited therein, plaintiff contends that the giving of the instruction was error since the evidence showed that deceased had no knowledge of the existence of the intersection and therefore, had no duty to reduce the speed of his automobile. The evidence shows otherwise.

At the trial Mr. Baldwin testified to the conversation which he had with the decedent concerning the location of the Maricopa-Casa Grande Highway as follows:

'Q. Do you remember what you said to him?

A. No, I just told him about how far it (Anderson Road) was down to where it turned.

Q. That would be about how far, Jess?

A. About four miles.

Q. And then did you tell him how far it was across to the Maricopa Road?

A. No, I didn't tell him how far it was, I told him that the Maricopa Road was right across the tracks.'

At a later point the witness, Baldwin, also answered,

'* * * but I told him Maricopa highway was right along the railroad tracks.'

Photographs admitted into evidence show that the intersection was located right after the railroad tracks. Railroad cross-bucks and a yellow sign were also in location at the tracks so that any car traveling down the highway at nighttime would see them before crossing the tracks. Although the deceased did not know that the intersection was a dead-end 'T' intersection he did know that it was located right after the railroad. Deceased knew he had to negotiate a turn at the intersection and if he had reduced his speed when he was warned of the existence of the railroad, the accident would not have happened.

Plaintiff next contends that the court erred in failing to give an instruction on gross negligence instructing the jury in effect, that if the defendant was guilty of gross negligence, then the defense of contributory negligence on the part of the deceased cannot be maintained. As authority for the gross negligence instruction the appellant cites the case of Bryan v. Southern Pacific Company, 79 Ariz. 253, 286 P.2d 761 (1955). In Bryan the court defined wanton or gross negligence as the creation of an unreasonable risk of bodily harm to another together with a high degree of probability that substantial harm will result. In that case the court held that the practice of the railroad in making 'flying switches' across the streets of populous towns can be wanton negligence if adequate means are not employed to protect the traveling public, particularly if made at...