Krauth v. Billar

• Decision Date: 29 January 1951
• Docket Number: No. 5145,5145
• Citation: 71 Ariz. 298,226 P.2d 1012
• Parties: KRAUTH et al. v. BILLAR et al.
• Court: Arizona Supreme Court

Page 1012

226 P.2d 1012

71 Ariz. 298

KRAUTH et al. v. BILLAR et al.

No. 5145.

Supreme Court of Arizona.

Jan. 29, 1951.

Fennemore, Graig, Allen & Bledsoe, of Phoenix, for appellants.

Snell, Wilmer, Walsh & Melczer and Kramer, Morrison, Roche & Perry, all of Phoenix, for appellees.

STANFORD, Justice.

Action was brought in the Superior Court by the appellants herein to recover damages allegedly sustained as a result of negligence of the appellee, Robert Billar.

At approximately 10:30, on the night of August 20, 1945, appellant Bessie Ferm Krauth, fifteen years of age, was assisting a group of five other young people in pushing a Ford automobile, owned by Harry Wilson, Jr., in a Southerly direction along North Seventh Street in the vicinity of East Palm Lane in Phoenix, Arizona. The car had run out of gas shortly before and they were attempting to start the car after having put some gas in the tank. Facts brought out at the trial indicate that the Ford, at the time of the accident was located on the West side of the well traveled portion of the street.

Shortly before the accident complained of, a 'jeep' automobile which had been traveling in a Southerly direction, along North Seventh Street, turned around and stopped opposite the Ford on the East side of the well traveled portion of the street, facing North, with the head lights shining. Appellee Robert Billar, who was driving his father's Hudson automobile in a Southerly direction along North Seventh Street at the time, claims to have been blinded by the lights from the 'jeep' as he approached the two cars. Upon seeing the Ford, he applied his brakes, and after skidding some 59 feet, collided with the rear of the Ford car, the impact of which carried it approximately 400 feet South on Seventh Street. Appellant Bessie Krauth, who had been pushing the Ford from the rear, was caught between the two cars at the time of the impact which resulted in tearing her right limb from her body just below the knee.

Complaint was thereafter filed by Bessie Krauth and her parents, all of whom are appellants herein, alleging injury to the person of Bessie Krauth and damages resulting from the said injury. The complaint joined Louis L. and Nettie Billar, the parents of the appellee Robert Billar, alleging liability on the basis of the Family Car Doctrine.

The jury in the case returned a verdict in favor of all the appellees, and upon such verdict, a judgment was rendered in favor of the appellees, on the 18th of October, 1947. From such judgment and the denial of a motion for new trial, this appeal is taken.

Before entering into the merits of the appeal, convenience suggests that we first dispose of a preliminary point. The major portion of the appellees' brief is devoted to argument directed at disposing of any possible application of the Family Car Doctrine in the joining of Louis L. and Nettie Billar. The record discloses that motion for summary judgment as to these parents of Robert Billar, was made prior to the trial in the lower court and again at the close of the trial, both motions alleging that Robert Billar was a member of the armed forces at the time, and as such was not a member of the Billar family in a legal sense. These motions were denied both times.

Appellees have submitted argument on this matter without having made any cross assignment of error and therefore there will be no consideration given it by this court. It is of course a well settled rule in this jurisdiction that argument by an appellee, that error was committed in the lower court to his prejudice, will not be considered in absence of a cross assignment of error, where the error is not fundamental. Steinfeld & Co. v. Tew, 35 Ariz. 147, 274 P. 1047; Webb v. Crane Co., 52 Ariz. 299, 80 P.2d 698, and cases cited therein.

Appellants, by their brief, urge some eleven assignments of error, directed at the court's allowance and failure to allow admission of exhibits in evidence and requested instructions of both appellants and appellees.

Appellants' assignment of error No. 8 reads as follows:

'The trial court erred to the prejudice of the plaintiffs in granting defendants' Requested Instruction No. 15, as follows:

"You are instructed that it is unlawful for any person to stop a motor vehicle upon a public highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle be left for free passage of other vehicles thereon. If you find by a preponderace of the evidence that the Wilson automobile was stopped in the highway when this accident occurred, without such clear and unobstructed width of fifteen feet opposite it for free passage of other vehicles thereon I instruct you that said vehicle was upon and using the highway unlawfully. I further instruct you that if you find that the plaintiff Bessie Fern Krauth participated in the act of so placing and stopping the Wilson automobile upon the highway and that such act was the approximate cause of the accident, that is, an act which if it had not been done the accident would not have happened, your verdict should be for the defendants.'

'This instruction is not a proper statement of the law in that it omits therefrom the exception referring to disabled vehicles and is not supported by the evidence.'

The instruction mentioned above purported to instruct the jury concerning the law as contained in section 66-116, A.C.A.1939, which reads as follows: 'No person shall leave a vehicle parked, whether attended or not, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to leave such vehicle standing off said portions of such highway; in no event shall any person leave a vehicle standing, whether attended or not, upon any highway unless a clear and unobstructed width of not less than fifteen (15) feet upon the main traveled portion of said highway opposite such standing vehicle be left for free passage of other vehicles thereon. This section shail not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway to such extent that it is impossible to avoid temporarily leaving the vehicle in such position.' (Emphasis supplied.)

However, it will be noted that the instruction completely omitted the material contained in the last portion emphasized above, nor was it covered in any other instruction.

Appellees insist that the instruction given was correct as applied to the facts of the present case, in that the exception was not meant to apply to disabled vehicles unless such vehicle was in such condition that it could in no manner be moved, even though the condition might have prevented locomotion under its own power.

We cannot agree with this argument as we are of the opinion that the applicability of the disability exception contained in the statute is dependent to a great extent on the particular circumstances of each case, and vague degrees of technical disability may not be specifically classed as included or excluded as a matter of law. In the present case, the jury was left to determine whether or not the facts warranted an application of the law contained in the instruction which was...