McDowell v. Davis

• Decision Date: 02 July 1968
• Docket Number: CA-CIV,No. 1,1
• Citation: 8 Ariz.App. 33,442 P.2d 856
• Parties: Howard Eugene McDOWELL, Jr., Howard Eugene McDowell and Blanche C. McDowell, Appellants, v. Thomas M. DAVIS, a minor, C. E. Davis, Read Mullan Motor Company, an Arizona corporation, Michael W. Altamirano and the City of Phoenix, a municipal corporation, Appellees. 594.
• Court: Arizona Court of Appeals

Page 856

442 P.2d 856

8 Ariz.App. 33

Howard Eugene McDOWELL, Jr., Howard Eugene McDowell and Blanche C. McDowell, Appellants, v. Thomas M. DAVIS, a minor, C. E. Davis, Read Mullan Motor Company, an Arizona corporation, Michael W. Altamirano and the City of Phoenix, a municipal corporation, Appellees.

No. 1 CA-CIV 594.

Court of Appeals of Arizona.

July 2, 1968.

Rehearing Denied Sept. 4, 1968.

Moore, Romley, Kaplan, Robbins & Green, Phoenix, by Philip A. Robbins, Elias M. Romley, Marvin R. Kaplan and Craig R. Kepner, Phoenix, for appellants.

Browder, Gillenwater & Daughton, Phoenix, by Robert W. Browder and Stephen W. Connors, Phoenix, for appellees Davis. Snell & Wilmer, Phoenix, by Mark Wilmer and John J. Bouma, for appellee Read Mullan Motor Co.

Kramer, Roche, Burch, Streich & Cracchiolo, Phoenix, by Daniel Cracchiolo and James D. Lester, Phoenix, for appellees Michael W. Altamirano and City of Phoenix.

DONOFRIO, Judge.

This appeal, involving a personal injury action resulting from an automobile accident, is by the plaintiffs McDowell, hereinafter referred to as plaintiff, from the granting of judgments in favor of certain of the defendants, and from the judgment based on the jury's verdict in their favor against the remaining defendants. The basis for the latter is inadequacy of damages.

At the time of the accident plaintiff Howard Eugene McDowell, Jr. was 16 years old and a passenger in a car driven by one of the defendants, Thomas M. Davis, 17 years of age. The vehicle was traveling south on 40th Street near its intersection with Sherman Street. The car was then involved in a collision with a City of Phoenix sanitation truck and trailer driven by defendant Altamirano. Witnesses to the accident included three City of Pheonix employees who were eating their lunch in a city truck parked near the scene of the accident, the city employee riding in the truck with Altamirano, and a girl walking down 40th Street, adjacent to the scene.

The testimony at trial established that the witnesses at the scene were preoccupied in watching the girl, and as a result their stories are a mass of contradictions. There was varying testimony that the Ford in which plaintiff was a passenger was traveling from 5 to 55 miles per hour, and that the truck was traveling anywhere from 15 to 45 miles per hour. The location of the collision was placed all over the intersection of Sherman and 40th Streets. The fact of whether or not the driver of the Ford had signaled for a left turn was also disputed. The expert testimony seems to establish the fact that the accident did occur in the intersection and that the Ford was four of five feet into the northbound lane of traffic. Whether the car had swerved across the line or was attempting a left turn is not certain.

The driver of the Ford automobile, Thomas M. Davis, was driving on a license which he had wrongfully obtained at the age of 15 by representing his age as being 16. His father had signed the application despite the discrepancy. The car belonged to Read Mullan Motor Company and had been furnished by Read Mullan to Davis' father who was an employee of the company. The car was used as a demonstrator and for the personal use of Mr. Davis and his family, the use being turned over to the employee by a lease arrangement.

It is undisputed that the injuries sustained by young McDowell are extremely grievous. At the time of trial has medical expenses alone had exceeded $38,000. Brain damage has left him with such mental and physical disabilities that he will need an attendant to care for him the rest of his life. Further, he probably will never be able to do any work sufficient to support himself. Testimony at the trial established that as a junior in high school his probable lifetime earnings, which were lost due to the accident, would have been over $200,000. In addition, there was testimony to the effect that the minimum amount which would be required to provide him with the necessary care for the rest of his life would be in excess of $273,000. The jury fixed damages in the sum of $163,117.28.

The questions presented by plaintiff on appeal are: first, whether the trial court was in error in instruction the jury that an act or omission cannot be a proximate cause if it contributes only slightly or possibly to the result; second, whether the sudden emergency instruction which was given by the court was proper; third, whether the trial court was in error in directing a verdict in favor of Read Mullan Motor Company; and finally, whether the verdict of the jury was wholly inadequate.

I.

The Court instructed the jury as follows:

'Ladies and gentlemen, another test of proximate cause recognized by our law may be helpful to you. Was the negligent act of the party under consideration a material element or a substantial factor in producing the injury? An act or an omission cannot be a proximate cause if it contributes only slightly or possibly to the result, for a proximate cause is one which is a material element or a substantial factor in causing the injury.' (Emphasis supplied.)

Plaintiff objected to the language of the above instruction on the ground that it is telling the jury that a defendant cannot be held liable for his negligence if such negligence contributes only slightly to the accident. Plaintiff does not dispute the 'substantial facts' test for proximate cause but argues that the instruction is an erroneous statement of that doctrine. He sets forth that it is well settled in Arizona that any negligence which contributes in any degree to an accident is actionable if committed by defendant and is a bar to recovery if committed by a plaintiff. Mantovani v. Green, 90 Ariz. 376, 368 P.2d 448 (1962); Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 (1961). In these cases the court stated that negligence which contributes 'in any degree' or 'in the slightest degree' is a bar to plaintiff's recovery as contributory negligence. We do not believe the instant instruction runs contra to these opinions. In holding that 'any degree' of contributory negligence warranted an instruction informing the jury that it should find for defendant, the court in Mantovani did not repudiate the well known principle that in order for negligent acts or omissions to constitute 'contributory negligence', it must be proven that plaintiff's acts or omissions proximately caused his injury. It is elementary that a plaintiff cannot be denied recovery for his negligence unless such negligence is the proximate cause of his injury. See Salt River Valley W. U. Assn. v. Cornum, 49 Ariz. 1, 63 P.2d 639 (1937); Stearman v. Miranda, 97 Ariz. 55, 396 P.2d 622 (1964); and Serrano v. Kenneth A. Ethridge Contracting Co., 2 Ariz.App. 473, 409 P.2d 757 (1966). Likewise, a defendant cannot be held legally liable if his negligent acts or omissions are not a proximate cause of the plaintiff's injuries. A reading of the instruction indicates that it was directed to this rule of law.

The instruction is Arizona Uniform Jury Instruction No. 5--A prepared by the State Bar Committee on Uniform Jury Instructions. According to the committee, it was written to be used in explaining to a jury the difficult concept of proximate cause. A note by the committee reads:

'This instruction is included as a possible supplement to No. 5. The 'material element-substantial factor' test is believed by many authorities to be helpful in explaining to a jury the difficult concept of proximate cause.'

Arizona has adopted the 'substantial factor' test for proximate cause, Herzberg v. White, 49 Ariz. 313, 66 P.2d 253 (1937), and this instruction, we believe, when considered with all the others, is about at adequate an explanation of this difficult term or doctrine as can be made.

Instructions must be considered as a whole and read in conjunction with all the instructions given. Ieronimo v. Hagerman, 93 Ariz. 357, 380 P.2d 1013 (1963). In the instant case we find the trial court correctly instructed that it is important to recognize that proof of negligence by itself will not establish a claim or defense unless that negligence was one of the proximate causes of the injury. The court went on to define the word 'proximate' as meaning near or direct as distinguished from a remote or indirect or insubstantial cause. It further stated that the plaintiff must establish not only that the defendants or either of them were negligent, but that such negligence contributed as a proximate cause of the accident. It thereafter gave the usual instruction:

'* * * The proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred. It is the efficient cause, the one that necessarily sets in operation the factors that accomplish the injury. It may operate directly or through intermediate agencies or through conditions created by such agencies. This does not mean that the law seeks and recognizes only one proximate cause of an injury consisting of only one fact, one act, one element of circumstances or the conduct of only one person. * * *'

Following this, the court gave the instruction in question. We do not believe the jury could have been misled in any way as to the law which holds that any negligence which contributes in any degree to an accident is actionable if committed by a defendant and is a bar to recovery if committed by a plaintiff, nor of the law which provides that when two or more defendants are charged with concurrent negligence, it matters not whether one was more negligent than the other since they are both liable if their own negligence contributed in any degree to the accident. There is no one method to explain proximate cause as Arizona has accepted it, and in reading all the instructions as a whole, we find the law regarding proximate cause to have been properly set forth, and in a way that it was not...