LeRoy v. Phillips

• Decision Date: 04 March 1965
• Docket Number: No. 7720,7720
• Citation: 399 P.2d 669,97 Ariz. 263
• Parties: Bernard LeROY, Special Administrator for the Estate of Edward Maxwell Pacheco, Deceased, Appellant, v. Morris Henry PHILLIPS and Jane Doe Phillips, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 669

399 P.2d 669

97 Ariz. 263

Bernard LeROY, Special Administrator for the Estate of Edward Maxwell Pacheco, Deceased, Appellant, v. Morris Henry PHILLIPS and Jane Doe Phillips, husband and wife, Appellees.

No. 7720.

Supreme Court of Arizona, In Division.

March 4, 1965.

Morgan, Marks & Rogers, Tucson, for appellant.

John Claborne, Tucson, for appellees.

McFARLAND, Justice.

Appellant was plaintiff in a death action which arose out of an accident in which defendant's car struck and killed a pedestrian. Plaintiff is administrator of the estate of the deceased pedestrian. The trial judge directed a verdict in favor of defendant at the end of plaintiff's case, and it is from the judgment entered on that verdict that plaintiff appeals. We must consider the evidence and the inferences to be drawn from the evidence in the light most favorable to the party against whom the verdict was directed--in this case, the plaintiff. Spain v. Kelland, 93 Ariz. 172, 379 P.2d 149.

The accident happened about midnight at the intersection of Flores Street and Stone Avenue in Tucson. The deceased was riding as a passenger on a motor scooter heading east on Flores Street and driven by James P. Shoumaker. The scooter had been stopped for a stop sign, and was being turned south on Stone Avenue when it tipped over into the street, and threw the driver and the deceased into the intersection. The driver and the deceased got up, and the driver started to wheel the scooter to the side of the road. When he was hit the deceased was either pushing the scooter from behind or was picking up tools which had been strewn in the intersection.

Witness Wesley Riba testified that defendant was driving south on Stone Avenue, and had been going at a constant speed of from 20 to 30 miles per hour for several blocks. Witness Riba also testified that the speed limit was 30 or 35 miles per hour. Officer Robert E. Harris testified that defendant laid down skidmarks of 50 feet with his left wheel and 66 feet with his right wheel. Thirty-eight feet of the skidmarks of his left wheel and 52 feet of the skidmarks of the right wheel were from the time he stepped on the brakes until he hit the deceased. When defendant stepped on the brakes, his car veered to the left, but continued to skid forward. Deceased was tossed above the car, and was thrown 44 feet from the point of impact.

Stone Avenue is a four-lane highway, and is 43 feet wide at the place where the accident happened. The intersection of Flores and Stone was unlighted, and was very dark at the time the accident occurred. It was difficult to see pedestrians and objects in the road even with headlights on. The part of Stone from which defendant was coming, as shown by the exhibits and testimony, had a number of gradual declines and rises to facilitate the flow of water across the avenue. The point of impact was in the intersection, and was at a depression on Stone. Defendant was traveling down an incline toward the intersection. Witness Riba who was driving behind defendant testified:

'Q Do you know whether or not as you go down the hill, as you approach Flores, whether or not it decreases your headlight length?

'A That much on a down hill grade?

'Q Yes.

'A Yes.

'Q So that, based on your experience at the scene and the area around here, as you approach this area into this general area just north of Flores that your headlights, as far as seen, the intersection, would be shortened because of the downhill grade; is that right?

* * *

* * *

'THE WITNESS: Yes. It would be, it would, compared to if it was straight and level, a flat highway. Going downhill you would not be able to see good.

* * *

* * *

'Q One last question, Wesley. Based on your experience at the scene and being right behind Mr. Phillips, the lighting conditions, the nature of the roadway, that is, the roadway above Flores, all those factors, could you tell we whether or not it would be difficult at that time to see a pedestrian in the area as you approached Flores, in the area where Mr. Pacheco was standing when you saw him?

'A Would say it would be hard to see?

'Q Yes.

'A I would say yes. It's very difficult.'

Witness James P. Shoumaker testified:

'Q Were you aware of Mr. Phillips' lights shining on you?

'A No, sir.

'Q Were you alert to the approach of lights?

'A I was alert to one thing. I was alert when I heard that impact enough to turn around and see what happened to Eddie.

'Q I asked you if----

'A If lights had reflected on me I probably would have seen him, yes.'

Then, again, Shoumaker testified:

'THE COURT: The last question is, were you aware of any headlights while you were on the street?

'THE WITNESS: I said no, sir.'

Appellant asserts that the evidence is such that a jury could have found that defendant violated standards of care provided for in three statutes regulating the operation of motor vehicles, and therefore a jury question was presented as to the issues of negligence and proximate cause. The statutes provide:

A.R.S. § 28-701----

'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. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.'

A.R.S. § 28-701----

'E. The driver of every vehicle shall, consistent with the requirements of subsection A, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.' [Emphasis supplied.]

A.R.S. § 28-942----

'When a motor vehicle is being operated on a roadway or shoulder adjacent thereto during the times specified in § 28-922, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle, * * *.'

We have recently held that under A.R.S. § 28-701, subsec. A and § 28-701, subsec. E driving at a speed less than the speed limit may be negligence. Deering v. Carter, 92 Ariz. 329, 376 P.2d 857; and Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934.

In Deering v. Carter, supra, in noting that a violation of these particular statutes is not technically 'negligence per se,' we said:

'When, as here, the statute does not proscribe certain or specific acts, but defines a standard of conduct against which the jury must measure the party's conduct, a finding that the party violated the statutory standard is a finding that the party was negligent. The words 'per se' add nothing to the word negligent in this case, and are better reserved to describe those instances where certain acts or omissions consitute negligence without further inquiry into the circumstances or reasonableness of their occurrence.' 92 Ariz. at 333, 376 P.2d at 860.

In earlier cases, we held that it was negligence as a matter of law to drive a vehicle at such a speed that it could not be stopped within the range of its headlights. See e.g. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276; Coe v. Hough, 42 Ariz. 293, 25 P.2d 547; Campbell v. English, 56 Ariz. 549, 110 P.2d 219; Doty v. Southern Pac. Co., 59 Ariz. 449, 129 P.2d 991. In Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 166 P.2d 816, explained in Butane Corp. v. Kirby, 66 Ariz. 272, 187 P.2d 325, we rejected the 'range of vision' rule and Dennis, Coe, and Campbell, which had applied it. In Butane Corp., supra, we said:

'We now hold that the driver of an automobile at night is not required under all circumstances to see any object in the road in front of him which comes within the radius of his lights and be able under all circumstances...