Larsen v. Arizona Brewing Co.

• Decision Date: 21 May 1958
• Docket Number: No. 6201,6201
• Citation: 325 P.2d 829,84 Ariz. 191
• Parties: A. A. LARSEN and T. R. Larsen, individually and as co-partners dba Larsen Contracting Company, Appellants and Cross-Appellees, v. ARIZONA BREWING COMPANY, Inc., an Arizona Corporation, Appellee and Cross-Appellant.
• Court: Arizona Supreme Court

Page 829

325 P.2d 829

84 Ariz. 191

A. A. LARSEN and T. R. Larsen, individually and as co-partners dba Larsen Contracting Company, Appellants and Cross-Appellees, v. ARIZONA BREWING COMPANY, Inc., an Arizona Corporation, Appellee and Cross-Appellant.

No. 6201.

Supreme Court of Arizona.

May 21, 1958.

Snell & Wilmer and James H. O'Connor, Phoenix, for appellants.

Stahl, Murphy & Blakley, Phoenix, for cross-appellees.

Jennings, Strouss, Salmon & Trask, Clarence J. Duncan and Charles L. Strouss, Jr., Phoenix, for appellee and corss-appellant.

PHELPS, Justice.

The plaintiff, Arizona Brewing Company, Inc., sued Clarence Tommy Eason, William A. Ellis, Raymond C. Reed, and A. A. Larsen and T. R. Larsen individually and as co-partners, dba Larsen Contracting Company, in negligence for damage to a truck and trailer. We shall refer to the last two defendants as Larsen Brothers. A collision on Highway 87 with a dump truck driven by defendant Eason caused the damage to the truck and trailer. Pursuant to written stipulation the court dismissed the cause as to defendants Ellis and Reed. The case proceeded to trial on two causes of action. The first, against Eason and Larsen Brothers, charged that Eason negligently ligently drove a dump truck owned by Ellis into plaintiff's truck at a time when and place where he was 'a servant and employee and under the supervision and control of' Larsen Brothers, among others. The second, against Larsen Brothers only, charged that they 'were negligent in not properly warning persons travelling upon said Highway 87 that a hazardous condition existed by reason of the crossing of the trucks engaged in the prosecution of said Larsen contract'. At the close of all the evidence the court granted Larsen Brothers' motion for a directed verdict on the first cause of action of the complaint, and denied the same motion as to the second cause of action. Hence, the case went to the jury on the first cause of action against Eason only and on the second cause of action against Larsen Brothers. The jury returned a verdict against Eason and Larsen Brothers in the amount of the stipulated damages, and the court entered judgment thereon. Eason moved for a new trial; Larsen Brothers moved for judgment n. o. v. or a new trial on the second cause of action; and plaintiff moved for judgment n. o. v. or a new trial against Larsen Brothers on the first cause of action. The court denied all of these motions. Larsen Brothers appealed, and plaintiff cross-appealed, which cross-appeal it urges only in the event Larsen Brothers are successful in their appeal. Eason did not appeal.

The collision in controversy occurred at the intersection of Skousen Road with State Highway 87, approximately four miles northwest of Coolidge. When the dump truck driven by Eason was crossing Highway 87, it collided with plaintiff's truck and trailer which had been travelling on that highway. Stop signs on Skousen Road had been erected to protect through traffic on Highway 87. The dump truck carried a load of gravel from a gravel pit off Skousen Road about a mile north of the intersection and was proceeding to a point on Skousen Road about four or five miles south of the intersection where Larsen Brothers were resurfacing a six-mile stretch of road pursuant to a contract they had with the State of Arizona. This entire operation of hauling was being accomplished in effectuation of their contract with the state. About fifteen trucks were engaged in the hauling operation, such that one would cross Highway 87 in one direction or the other on an average of every three minutes.

According to facts admitted at plaintiff's request Larsen Brothers had a sign reading 'Slow Truck Crossing' placed on the side of Highway 87 approximately 350 feet on either side of the intersection. According to photographs admitted in evidence the sign was placed beneath the highway department's sign that has a cross on it to warn of an intersection. The photographs reveal that the 'Slow Truck Crossing' sign was clearly visible. Plaintiff's driver admitted that he saw both signs, that the 'Slow Truck Crossing' sign constituted a warning to him that he had better look out for some trucks, but that he did not reduce his speed from the 45 to 50 miles per hour at which he had been travelling.

Larsen Brothers assign as error the court's denial of their motion for a directed verdict on the second cause of action at the close of the case for the reasons, among others, that (1) the evidence did not establish a duty on the part of Larsen Brothers to erect any sign or other warning of the trucks crossing Highway 87 at Skousen Road, and (2) even assuming they owed plaintiff a duty to warn of the truck crossing, the evidence affirmatively demonstrated that the sign posted by Larsen Brothers adequately warned plaintiff's driver of the truck crossing. As to the first reason, plaintiff contended at the trial and contends in his brief before this court that Larson Brothers' contract with the state established in them a duty to warn of the trucks crossing the intersection. Plaintiff introduced in evidence the following provisions of the contract to support its contention that the contract established this duty:

'Barricades, Danger, Warning and Detour Signs--The Contractor shall at his expense and without further or other order provide, erect and maintain at all times during the progress or temporary suspension of the work such barricades, fences, warning lights, danger signals, reflectors, signs or other protective devices as are required to insure the safety of the public, those engaged in connection with the work and the work itself. This work shall be done in accordance with the Sign Manual of the Department and the following:

'At any and all points along the work where the nature of the construction operations in progress and the Contractor's equipment and machinery in use is of such a character as to endanger passing traffic, the Contractor shall erect such signs, place such lights and station such guards, watchmen and/or flagmen as may appear necessary to prevent accidents and avoid damage or injury to passing traffic. * * *

'The Engineer shall use every precaution to safeguard the person and property of the traveling public; however, the failure of the Engineer to notify the Contractor to erect and maintain barricades, lights, signs or to post watchmen, shall not operate to relieve the Contractor from his responsibility. * * * The Contractor's responsibility for the maintenance of barricades, lights and signs on the work, or on any individual item or section of the work shall cease only when such work, item or section is completed, and/or ordered opened to the public as hereinafter provided.' (Emphasis added.)

The italicized portions of the above provisions clearly import a duty to place warning devices as necessary only in areas where the actual work of the contract, in this case resurfacing, is taking place. The contract provisions did not extend this duty so as to place an obligation upon Larsen Brothers to warn the travelling public of an increase in ordinary vehicular traffic at an intersection four or five miles distant from the resurfacing work. To impose such an obligation would lead to absurdities where hauling operations by ordinary dump trucks involve the use of city streets.

As to the second reason noted for the first assignment of error, a cause of action in negligence requires a breach by the defendant of a duty owed to the plaintiff or a class of persons of which the plaintiff is a member. In this case the plaintiff alleges that Larsen Brothers owed to it through its driver the duty to adequately warn the driver of the trucks crossing the intersection. Even assuming that Larsen Brothers owed such a duty to plaintiff, the question becomes: Did Larsen Brothers breach that duty? Did Larsen Brothers fail to adequately warn plaintiff's driver of the trucks crossing the intersection? The...