Pacht v. Morris, 10345

• Decision Date: 29 September 1971
• Docket Number: No. 10345,10345
• Citation: 489 P.2d 29,107 Ariz. 392
• Parties: Rudolph PACHT, Appellant, v. Durle V. MORRIS et al., Appellees.
• Court: Arizona Supreme Court

Page 29

489 P.2d 29

107 Ariz. 392

Rudolph PACHT, Appellant, v. Durle V. MORRIS et al., Appellees.

No. 10345.

Supreme Court of Arizona, In Division.

Sept. 29, 1971.

Rehearing Denied Oct. 27, 1971.

Pain & Julian by Theodore A. Julian, Phoenix, for appellant.

Stevenson, Warden & Smith by Robert W. Warden, Flagstaff, for appellees.

CAMERON, Justice.

The plaintiffs, Durle and Constance Morris, collided with a dead horse on U.S. Highway 160 in Coconino County, Arizona. This is an appeal from a jury verdict and judgment in favor of the plaintiffs, Durle and Constance Morris, in the amount of $40,073.35 aggregate, as the result of personal injuries sustained in the collision.

We are called upon to decide, according to appellant's questions:

'1. Whether the Court erred in refusing to give defendant's requested jury instructions on the subject of plaintiff's speed in view of the testimony that the plaintiff was exceeding the posted prima facie speed limit.

'2. Whether sufficient evidence of proximate cause was presented from which it might have been reasonably inferred that any allegedly negligent conduct on the part of the defendant was the proximate cause of plaintiff's injuries.

'3. Whether the Court erred in failing to grant the continuance and/or a mistrial and/or a new trial on the basis of the surprise testimony of Dr. McDonald concerning plaintiff's alleged permanent serious injuries which surprise testimony could not have been prevented by ordinary prudence.

'4. Whether the verdict was excessive and as a result of prejudice and bias of the jury.'

The facts necessary to decide this matter on appeal are as follows. Defendant Pacht was returning to his California residence on U.S. Highway 160 in Coconino County, Arizona, after picking up his daughter at Colorado College in Colorado Springs, Colorado. At about 9 PM on the unlighted route, several horses crossed the road in front of his car. Unable to stop in time or to otherwise avoid the collision, Mr. Pacht's vehicle struck a dark bay. The impact was at the driver's side front headlight and bumper area. The impact lifted the horse--which struck the windshield--and the animal was tossed lifeless to the roadway. Mr. Pacht continued on to Tuba City some 26 miles away where he reported the incident.

Meanwhile, another passing motorist advised a nearby police officer of the hazard. Officer Charlie, a Navajo tribal policeman, proceeded back to the scene of the accident. Upon arriving he aimed his spotlight at the horse, turned on his flashers and was about to leave the car to place warning flares. At that time the Morris car appeared over the rise some 100 to 150 yards from the horse. Office Charlie blinked his lights in warning. Mrs. Morris, the driver, taking the blinking to be a request to dim her lights, similarly blinked her lights. The Morris car proceeded on course and when the obstacle came within headlight view, Mrs. Morris unsuccessfully attempted to swerve. The car struck the horse and careened into the police car. This sequence occurred before Officer Charlie had time to get out of his vehicle.

SPEED INSTRUCTION

Appellant requested the following instruction:

'You are instructed that 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.'

Appellant concedes that this instruction is directed to the issue of contributory negligence. To substantiate his request, appellant notes Officer Charlie's in-court estimate of the speed of the Morris vehicle, immediately prior to the collision, as being 60 to 65 miles per hour in a 60 mile per hour zone. This testimony, it is contended, mandates the giving of the instruction. We cannot agree. While it may be that the instruction could have been given without error on the part of the trial court, that does not mean that it was error to refuse said instruction. In this case the court instructed on contributory negligence and the jury was apprised by the testimony that the posted limit was 60 m.p.h. The officer's report, as filed, indicated the speed of the Morris car at 55 miles per hour. Mrs. Morris similarly testified her speed was between 55 and 60 m.p.h. Additionally, the posted speed is 'prima facie', i.e. it may be that under the circumstances and conditions of the roadway, weather, etc. that 65 m.p.h. would not be negligent operation. Notwithstanding the lack of conclusive evidence of excessive speed, appellant still had full benefit of his theory. Instructions must be read as a whole. We find no reversible error here.

PROXIMATE CAUSE

A proximate cause of an injury is any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred. MARJI No. 9 (Revised). See Alires v. Southern Pacific Company, 93 Ariz. 97, 378 P.2d 913 (1963). Appellant contends that his negligence, if any, in failing to take some remedial action by either warning people or moving the horse could not have been a proximate cause of the Morris injuries. First, it is asserted, he alone could not have physically moved the horse. Secondly, appellant asserts Office Charlie undertook warning far beyond that which Pacht could have and nonetheless the accident occurred. In order to place this problem in its proper focus, a return to the facts is necessary. Shortly after impact, Mr. Pacht passed Officer Charlie's vehicle on the side of the road. He did not stop then to report the collision nor did he stop at impact to see what, if anything, could be done. Appellant notes, by way of confession and avoidance of his failure, that he had glass in his eye and that immediate medical attention to himself and the occupants of his car was necessary. We note, however, that no aid or treatment was sought for this injury until the next day. It was, at worst, a minor injury.

This court need not speculate as to what would have occurred had the...