Layne v. Hartung
| Citation | 348 P.2d 291,87 Ariz. 88 |
| Decision Date | 06 January 1960 |
| Docket Number | No. 6475,6475 |
| Parties | Estelle M. LAYNE, as Administratrix of the Estate of Alvey G. Layne, Deceased, Appellant, v. Don M. HARTUNG, Appellee. |
| Court | Supreme Court of Arizona |
Moore & Romley and Jarril F. Kaplan, Phoenix, for appellant.
Snell & Wilmer and James H. O'Connor, Phoenix, for appellee.
Plaintiff, as administratrix of the estate of Alvey G. Layne, deceased, brought this action to recover damages for the latter's death as a result of an automobile intersection collision. A jury trial resulted in a verdict in favor of Don M. Hartung, defendant. The verdict was evidently upon the theory that the collision was a proximate result of negligence of the decedent, Alvey G. Layne and that the defendant was not negligent. A motion for a new trial was denied and plaintiff appealed to this Court from the judgment and order denying the motion for a new trial.
At approximately 8:00 A.M. on May 14, 1955, Alvey G. Layne (referred to hereafter as decedent) was driving his 1955 Dodge sedan in a westerly direction on McDowell Road in Phoenix. Defendant was operation his 1953 Buick sedan north on Fifth Avenue at an admitted speed of about 30 to 35 miles per hour and when he was about 100 to 150 feet south of the intersection of Fifth Avenue and McDowell Road, he observed that the traffic light controlling north and southbound traffic on Fifth Avenue at this intersection was green. Defendant continued to operated his car at the same speed as he approached the intersection and he testified he thought it possible that he noticed a westbound vehicle on McDowell some 50 to 60 feet east of the intersection. An exhibit of the plaintiff demonstrated that when defendant was approximately 114 feet south of the intersection he could observe westbound traffic on McDowell Road at a distance of approximately 85 feet and the farther north he traveled, the farther east defendant could observe such traffic.
The defendant testified that as he approached the intersection he checked traffic to his left and then upon looking back to his right or the east, he observed the car of decedent at a position where it did not appear it would be able to stop. Defendant estimated the vehicle of decedent at that time to be about 20 to 30 feet from the intersection and his own position to be about 10 to 15 feet from the intersection. The defendant then applied his brakes, left 24 feet 10 inches of skid marks and, without swerving ran into the Layne vehicle, which resulted in the death of Alvey G. Layne.
The front end of defendant's automobile collided with the left rear of the Layne automobile at a point 25 feet north of defendant's entrance to the intersection and the point of impact occurred in the northeast quadrant of the intersection.
A witness to the collision, Ralph Pond, testified he was operating his vehicle north on Fifth Avenue, following behind the defendant and that both were driving approximately the same speed of 30 miles per hour and that the Buick operated by the defendant appeared to slow down as it neared the intersection and that the traffic light was green for northbound traffic on Fifth Avenue at the time defendant entered the intersection.
A witness testified he was following the decedent's car westbound on McDowell and that when it was approximately 100 feet from the intersection the light regulating traffic at the intersection turned red for westbound traffic and that the car operated by decedent entered the intersection against the red light and immediately thereafter it collided with the northbound car driven by defendant. A witness following the decedent's car on McDowell Road testified that he became startled because as the decedent approached the intersection he apparently made no attempt to stop and drove his car into the intersection against the red light. Another witness who was following immediately behind the car of the defendant testified that as the car of the defendant was entering the intersection with the green light, he also saw the car of the decedent enter the intersection, going west on McDowell Road and the
There was evidence introduced showing that the defendant could have stopped his vehicle in 72 feet when traveling at 30 miles per hour.
The plaintiff introduced evidence which created a conflict on the issue of which driver was favored by the traffic signal at the time the two cars entered the intersection.
The plaintiff assigns as error the refusal of the trial court to give the following requested instruction:
'If you find by a preponderance of the evidence in this case that the defendant failed to observe this duty and that as a proximate result thereof Mr. Layne sustained injuries from which he died, it will be your duty to return a verdict in favor of the plaintiff.'
This Court has consistently held that an operator of a motor vehicle must maintain such a lookout as a reasonably prudent person would maintain in the same or similar circumstances; Pearson & Dickerson Contractors v. Harrington, 60 Ariz. 354, 137 P.2d 381 and the mere fact that the driver may have the right of way does not relieve him of the duty to keep a lookout. In Henderson v. Breesman, 77 Ariz. 256, 269 P.2d 1059, 1063, we recognized this rule and said:
'* * * The mere fact that a driver approaching an intersection from the right might have the right of way does not relieve him of the duty to make such observation as a reasonably prudent person should make under those circumstances.' See also Krauth v. Billar, 71 Ariz. 298, 226 P.2d 1012.
We also said in Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, that the driver of a vehicle on a favored highway could rightly assume that the driver of an automobile approaching an intersection would stop before entering the highway and the driver on the favored highway could not be charged with negligence in acting upon the assumption, unless he continues on with knowledge that the other driver is not going to yield the right of way or is not acting within the law. We quoted with approval the language in Glatz v. Kroeger Bros. Co., 168 Wis. 635, 170 N.W. 934, 936:
'The possession of this right does not, of course, justify the possessor in plunging ahead regardless of consequences nor in failure to exercise ordinary care to avoid injury to others * * *.'
In the instant case the evidence disclosed that the two vehicles were approaching the intersection at approximately the same speeds. That from a point about 114 feet south of the intersection, the defendant could observe westbound traffic approximately 85 feet east of the intersection; and that when he was 40 to 60 feet from the intersection he did in fact observe westbound traffic but did not pay any attention to that traffic. Defendant testified that it did not become obvious to him that the decedent was in a position of peril until defendant's car was 10 to 15 feet from the intersection and the car of decedent was 20 to 30 feet from the intersection.
Under these established facts the jury could have inferred that the defendant failed to maintain an adequate lookout and had the defendant maintained adequate lookout he could have observed earlier that the car operated by decedent was going to enter the intersection and further that the defendant then could and should have acted reasonably to avoid the collision. The jury under a proper instruction, could have inferred and found from the testimony and physical facts mentioned above, that the failure of the defendant to keep an adequate lookout contributed to and was a proximate cause of the accident. The court therefor erred in refusing to give the requested instruction.
Over plaintiff's objection and at the request of the defendant, the court gave the following instruction:
'You are instructed that unless you find by a preponderance of all the testimony that the defendant, Don M. Hartung, ran the red light at the time and place of the accident, then your verdict must be for defendant, Don M. Hartung.'
Plaintiff complains that this...
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