Orlando v. Northcutt

• Decision Date: 16 May 1968
• Docket Number: No. 9090--PR,9090--PR
• Citation: 441 P.2d 58,103 Ariz. 298
• Parties: Michael J. ORLANDO, Appellant, v. Gussie Sharlene NORTHCUTT, a minor, Appellee.
• Court: Arizona Supreme Court

Page 58

441 P.2d 58

103 Ariz. 298

Michael J. ORLANDO, Appellant, v. Gussie Sharlene NORTHCUTT, a minor, Appellee.

No. 9090--PR.

Supreme Court of Arizona, In Banc.

May 16, 1968.

Rehearing Denied June 18, 1968.

Kenneth Rosengren, Phoenix, for appellant.

Lewis, Roca, Scoville, Beauchamp & Linton, by James Moeller and D. W. Grainger, Phoenix, for appellee.

LOCKWOOD, Justice:

On the night of December 31, 1963, Michael J. Orlando was the driver of an automobile stopped in heavy traffic in the middle of a block on a busy highway in Phoenix. Orlando was attempting to make a left-hand turn across the center of the highway. Gussie Sharlene Northcutt, driving her car within the posted speed limit of 45 miles per hour, did not realize that Orlando's car was stationary until too late to avoid hitting the Orlando automobile in the rear. Orlando brought a suit against Northcutt to recover damages. One of the disputed issues in the trial was whether Orlando was signalling for a turn while stopped in the stream of traffic. The jury returned a verdict in favor of Northcutt and Orlando appealed.

The case comes before us for review of a decision of the Court of Appeals, Division I, 6 Ariz.App. 94, 430 P.2d 440 (1967). It is urged that the trial court erred in eliminating the following words (indicated in italics) from plaintiff's requested Instruction Number 2:

'Where plaintiff, Michael J. Orlando, violates a statute governing motor vehicles on the highway you may, But need not, find this to be negligence. The Constitution of Arizona gives the jury the sole and exclusive right to determine whether plaintiff, Michael J. Orlando's conduct amounts to contributory negligence. In weighing the plaintiff Michael J. Orlando's conduct against the standard of reasonable and ordinary care required of all persons you may consider the statutes read to you, and all the circumstances of the case. You may, but need not, apply the standards and requirements fixed by the legislature for drivers of motor vehicles.'

Counsel for both appellant and appellee cite as authority for their respective positions Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962), and cases following the principle laid down therein. In Layton, we held that an instruction to the effect that if the jury found there was contributory negligence, its verdict Must be for the defendant, would be violative of Art. 18, § 5, Arizona Constitution, A.R.S. ¹ We stated that the preferable form of instruction is that in the event of contributory negligence the jury 'should' find for the defendant, and we held that an instruction that the jury 'may' find for the defendant under such circumstances was not reversible error. Our most recent affirmation of this rule is found in Davis v. Waters, 103 Ariz. 87, 436 P.2d 906 (Jan. 24, 1968).

However, the modified instruction in this case presents a different problem. In Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413 (1967), involving a motor vehicle accident and a possible violation of a motor vehicle statute, we held that it was not error when the trial court read the statute to the jury and 'in effect, told the jury that a violation of that statute was negligence, and, if it were a proximate cause, the jury should find for defendant.' The instruction here requested by the appellant before modification by the trial court was an incorrect statement of the law. Violation of a statute created to protect a certain group is negligence per se, whether on the part of plaintiff or defendant. Evans v. Pickett, supra; Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 (1961). Whether the violation was the proximate cause of the accident is a jury question. If the plaintiff negligently violated the statute, the trial court must instruct the jury that this Is negligence. But whether it was contributory negligence depends on whether the jury decides the negligence was a proximate cause of the injury. Thus, the trial court did not err when it gave the modified instruction on negligence. (It should be noted that the modified instruction states that the jury 'may' find violation of a statute to be negligence. Thus, standing alone it might be possible to infer from such language that violation of a statute is not negligence. However, the trial court in a later instruction correctly directed the jury that violation of a statute is negligence per se.)

Plaintiff also urges that the trial court erred when it refused to give the plaintiff's requested instructions upon last clear chance and res ipsa loquitur, and further, that the trial court erred by overemphasizing instructions upon contributory negligence and burden of proof. The Court of Appeals did not agree with plaintiff as to the doctrine of last clear chance stating that the record forwarded to them was incomplete in that it lacked the transcript of testimony of several witnesses and thus:

'Not having the complete record before us, we are not able to state that the trial judge committed error in refusing this requested instruction.'

To support this approach in reviewing cases brought up on appeal, the Court of Appeals cites the language of this Court in Deisler v. Stevens, 77 Ariz. 16, 266 P.2d 738 (1954), wherein we stated that:

'This court is firmly committed to the rule that where No transcript of the evidence is sent up on appeal alleged errors in instructions cannot upset the result below unless the instruction is shown to be an incorrect abstract statement of the law prejudicial to the defendant under every conceivable state of the evidence.' (Emphasis supplied.)

Deisler is not in point because in that case No transcript of the evidence was sent up on appeal. In the case before us, we have the transcript of the testimony of both the plaintiff and defendant containing sufficient evidence upon which to decide the question. Further Deisler cites as authority for the above proposition Territory v. Clanton, 3 Ariz. 1, 20 P. 94 (1889), and many other Arizona cases in which the Court declined to reverse the trial court on the basis that there was no transcript of evidence properly before it. See also Mantovani v. Green, 90 Ariz. 376, 368 P.2d 448 (1962); Territory v. Neligh, 2 Ariz. 69, 10 P. 367 (1886). In each of the cited cases, with the exception of Clanton, there was No transcript of testimony whatsoever before the Court upon which it could base its decision. Further, we have held in the past that even if no transcript is forwarded on appeal, the reviewing court must consider questions of law which are raised by the partial record transmitted to the court. Hall v. Bowman, 88 Ariz. 409, 357 P.2d 149 (1960). A reasonable interpretation of the Clanton case and the cases subsequent is that all of the Essential evidence pertaining to the issues raised on appeal should be sent to the reviewing court.

It should also be emphasized that Clanton, a criminal case, was decided many years before we adopted our present Rules of Civil Procedure. Today, if the appellant chooses to transmit the testimony of a limited number of witnesses only (as he is permitted to do under 16 A.R.S., Rules of Civil Procedure, Rule 75(b)), ² or if appellant concludes that only a limited amount of the testimony is essential to the decision of the questions presented and therefore does not make the balance of the testimony part of the record on apeal (as Required under 16 A.R.S., Rules of Civil Procedure, Rule 75(e)), ³ the appellate court cannot refuse to decide the question on the basis that the record is incomplete. If there is additional testimony omitted which appellee deems is essential to the decision of the questions on appeal, the appellee himself must have this transmitted to the appellate court by way of a timely filing of a designation of additional record. 16 A.R.S., Rules of Cviil Procedure, Rule 75(a) ⁴ (1956). If appellee fails to do this, we will not presume that the balance of the record favors his contention.

Appellee Northcutt declared in her brief that appellants omitted significant portions of the trial record and that this precludes a finding contrary to that of the trial court. The Ninth Circuit Court of Appeals has stated:

'Appellees' Brief declares that appellants omitted significant portions of the trial record in designating the record on appeals. The charge is a serious one. But if appellees felt aggrieved, they should have filed a petition under Rule 75(b) of the Federal Rules of Civil Procedure to have a supplemental record brought before this court. They did not do so. Their failure to follow the prescribed procedure precludes them from questioning the composition of the record. For purposes of this appeal, it must be assumed that the record accurately relates the events that transpired in the court below.' (Emphasis supplied.) Bullen v. De Bretteville, 239 F.2d 824, 836 (9th Cir. 1956).

If the partial record is not sufficient to decide the issue, then the reviewing court must presume the trial court correct. Bryant v. Thunderbird Academy, 103 Ariz. 247 439 P.2d 818 (4/17/68); O'Brien v. Metro-Goldwyn-Mayer, Inc., 319 F.2d 294 (9th Cir. 1963); Reconstruction Finance Corp. of Washington, D.C., v. Herring, 110 F.2d 320 (9th Cir. 1940). Finding sufficient evidence presented in the record to decide the questions, we now proceed to the consideration of the issue regarding last clear chance.

We have held that the doctrine of last clear chance is applicable in this jurisdiction under the following circumstances:

'1. (a) The plaintiff has negligently subjected himself to a danger and such negligence has terminated or culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself; (b) the defendant saw or ought to have seen the peril of the plaintiff, and (c) the defendant thereafter has a last clear chance to avoid injuring the plaintiff by the exercise of reasonable care and fails to do so. 2. (a) The plaintiff has negligently subjected himself to...