Nichols v. Baker
| Decision Date | 13 July 1966 |
| Docket Number | No. 7699,7699 |
| Citation | 416 P.2d 584,101 Ariz. 151 |
| Parties | Delbert NICHOLS, Appellant, v. Eugene C. BAKER, Appellee. |
| Court | Arizona Supreme Court |
kewis, Roca, Scoville, Beauchamp & Linton, Phoenix, Wilson, Compton, Stoops & Brooks, Flagstaff, for appellant.
Langerman, Begam & Lewis, Phoenix, Amelia Lewis, Sun City, for appellee.
Appellant, hereinafter called defendant, appeals from a verdict and judgment in favor of appellee, hereinafter called plaintiff, entered by the Superior Court of Coconino County.
The essential facts and inferences most favorably supporting the judgment are that on August 2, 1958 plaintiff was injured when he jumped from a truck which was unable to negotiate a curve at the bottom of a hill because of defective brakes. At the time of the accident, plaintiff was employed by one Harold Jackson who was in the process of purchasing the truck in question from defendant and had obtained possession thereof approximately one month before. Jackson and others were named defendants in the original pleadings but the trial of the matter proceeded against defendant Nichols only. On this appeal defendant Nichols does not predicate error upon the legal relationship between tween himself and Jackson or others. Hence, our factual statement concerning that relationship is not here significant.
On the day of the accident, the truck was used to haul logs down from the mountains and carried a load of 75,000 pounds. Approximately two months before Jackson got the truck, defendant was informed by one of his drivers that the air brakes had failed and the driver had to run the truck onto the shoulder of the road to stop it. That driver was plaintiff's brother, June Baker, who examined the brake system on the truck at that time and found that the air hose had been spliced with copper tubing which had slipped out of the hose causing the loss of air pressure; the automatic protection system that was supposed to lock the trailer brakes when air pressure was lost did not work; the rear trailer wheels had no brake shoes or lining and the left rear tractor wheel had grease leaking on the brake drum. June told defendant about the defects but the only thing defendant repaired was the shoe lining on the right rear trailer wheel.
About two months before the accident, but after the repair, plaintiff had driven the same truck experiencing no difficulty at that time, although he noticed the splices on the air hoses. On the day of the accident he drove the truck tractor with the trailer on top to the log loading site, engaged the trailer to the tractor and connected the air hoses. The logs were loaded and plaintiff started down the mountain. When he reached the first steep grade the air brakes and automatic braking system failed and plaintiff was injured when he jumped from the truck before it ran off the road into a canyon. Later that day, June Baker, plaintiff's brother, went to the canyon, examined the truck and found the same defects which he had previously brought to defendant's attention except the shoe lining which had been repaired. June Baker's testimony is uncontradicted.
Three of defendant's assignments of error challenge the trial court's instructions or refusal to instruct the jury. It is first argued that the court should not have instructed the jury on wanton negligence because there was no evidence tending to establish that conclusion. Defendant does not say the instruction was incorrect, only that the facts did not support it.
A person is wantonly negligent if he wilfully does an act or fails to do an act which it is his duty to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the plaintiff but also involves a high degree of probability that substantial harm will result. Alabam Freight Lines v. Phoenix Bakery, 64 Ariz. 101, 166 P.2d 816. Wantonness implies a reckless indifference to the results of an act. Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325.
We must first decide whether the evidence that defendant created an unreasonable risk of injury and a high likelihood that substantial harm would result was sufficient to justify the instruction on wanton negligence. We think so. In Coyner Crop Dusters v. Marsh, 90 Ariz. 157, 367 P.2d 208 reversed on other grounds 91 Ariz. 371, 372 P.2d 708 we said the trial court should not remove from the consideration of the jury the issue of wanton negligence if there is evidence upon which to predicate such a finding. In Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 we approved of the following language:
"* * * It is not necessary to the giving of an instruction that the evidence should establish conclusively the hypothesis stated in it; if there is any evidence conducing to establish the assumption it is sufficient to authorize the giving of the instruction, and it is for the jury to find whether the facts stated are made out by the evidence. * * *" 89 Ariz. 326, 361 P.2d 937.
Of course, the evidence of wanton negligence must be more than slight and inconclusive bordering on the realm of conjecture. Butane Corporation v. Kirby, supra. In the case before us defendant knew the truck brakes were defective and had failed before. He knew the truck was being used to haul logs down from the mountains and he knew that if the air brakes failed the defective automatic braking system would not stop the truck loaded with logs. We cannot say as a matter of law that the evidence was insufficient to justify instructing the jury on wanton negligence. The facts are similar to the case of Womack v. Preach, 63 Ariz. 390, 163 P.2d 280 rehearing 64 Ariz. 61, 165 P.2d 657, in which this court held there was sufficient evidence of wanton negligence to send the issue to the jury where the defendant truck owner knew the brakes on his vehicle were insufficient but nevertheless allowed the truck, while heavily loaded, to be operated on a busy thoroughfare. The trial court did not err in instructing the jury on wanton negligence.
During oral argument, defense counsel abandoned the assignment of error which alleged the trial court erred in denying defendant's instruction on unavoidable accident. See Trickel v. Rainbo Baking Company of Phoenix, 100 Ariz. 222, 412 P.2d 852.
Defendant contends the trial court erred in refusing to charge part of his requested instruction on contributory negligence. The requested instruction including the deleted portion stated:
'Therefore, if you find from the evidence that the plaintiff failed to exercise reasonable care and that such failure was a contributing cause and instrumental in causing the damages in question, then and in that event plaintiff would be contributorily negligent and cannot recover from the defendant.' (The italicized portion is material deleted by the court.)
The last paragraph of the requested instruction is obviously incorrect because it orders the jury to...
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Harrelson v. Dupnik
...unreasonable risk of bodily harm to others but also involve a high probability that substantial harm would result. Nichols v. Baker, 101 Ariz. 151, 153, 416 P.2d 584 (1966); Walls v. Arizona Dept. of Public Safety, 170 Ariz. 591, 595, 826 P.2d 1217 (App.1991). Gross negligence is different ......
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...holding such operation of large vehicles with such knowledge of defective brakes may constitute recklessness. Nichols v. Baker, 101 Ariz. 151, 416 P.2d 584 (1966); Womack v. Preach, 63 Ariz. 390, 163 P.2d 280 (1945); Isaacson v. Boston, Worcester & N.Y. St. Ry. Co., 278 Mass. 378, 180 N.E. ......
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