Pearson & Dickerson Contractors, Inc. v. Harrington

• Decision Date: 17 May 1943
• Docket Number: Civil 4552
• Citation: 137 P.2d 381,60 Ariz. 354
• Parties: PEARSON & DICKERSON CONTRACTORS, INC., a corporation, Appellant, v. JOHN W. HARRINGTON, a minor, by JAMES E. HARRINGTON, guardian ad litem, Appellee
• Court: Arizona Supreme Court

137 P.2d 381

60 Ariz. 354

PEARSON & DICKERSON CONTRACTORS, INC., a corporation, Appellant, v. JOHN W. HARRINGTON, a minor, by JAMES E. HARRINGTON, guardian ad litem, Appellee

Civil No. 4552

Supreme Court of Arizona

May 17, 1943

APPEAL from a judgment of the Superior Court of the County of Yavapai. Levi S. Udall, Judge. Judgment affirmed.

Messrs Baker & Whitney and Mr. Harold E. Whitney, and Messrs Patterson & McFate, for Appellant.

Messrs Morgan & Locklear, for Appellee.

OPINION

ROSS, J.

The plaintiff, John W. Harrington, a minor, brought this action by James E. Harrington, his father, as guardian ad litem, against defendant, Pearson & Dickerson Contractors, Inc., to recover damages for personal injuries sustained from being struck by a Ford truck of defendant's driven by Phil O. Ratliff, employee of defendant, on the Truck Route of Highway 89 about one-half mile east of the City of Prescott.

In its answer the defendant defended on the ground that the plaintiff was struck by its truck and injured, as alleged, due (1) to his own negligence and (2) to his contributory negligence.

The case was tried before a jury and resulted in a verdict and judgment for plaintiff.

The defendant has appealed from the judgment assigning as reasons therefor (1) that the evidence shows no actionable negligence on its part; (2) that it shows plaintiff's injuries were proximately caused by his own negligence, and (3) that the court erred in its instructions to the jury.

The accident occurred July 11, 1941, at about 2:00 P.M. Plaintiff, at the time a minor 19 years of age, was on his way to work. In his complaint he charges that he was walking along said Truck Route of Highway 89, on the left side thereof in a southwesterly direction, when defendant's truck, approaching along said route from the opposite direction at a high rate of speed, drove directly towards plaintiff compelling him to flee towards the right or north side of the highway, where he was struck and run down by defendant's truck with such force that his body was thrown over the hood and his head forced through the windshield thereof.

The only eyewitnesses to the accident were the plaintiff and Ratliff, the driver of defendant's truck, and they do not agree as to the facts. According to plaintiff he was blameless, and, if the driver Ratliff is believed, he was without fault.

The physical evidence on the ground, when considered in connection with the testimony of witnesses, does not lead to any definite or satisfactory conclusion as to whose was the fault. In such circumstances, the injury being admitted, we think the liability therefor became a question for the jury under proper instructions. The trial court's action in submitting the questions of negligence and contributory negligence to the jury is convincing proof of that tribunal's conviction that the evidence of negligence on the part of defendant was sufficient to take the case to the jury.

It may be granted that plaintiff by his conduct contributed to his injury, but whether he did or not was a question for the jury. It is made so by the state Constitution, Article XVIII, section 5, which reads as follows:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."

Of this provision, in Inspiration Consolidated Copper Company v. Conwell, 21 Ariz. 480, 190 P. 88, 90, we said:

"... We are therefore called upon to determine for the first time in this jurisdiction, the scope and effect of the constitutional provision. The language of the provision is plain and unambiguous, and to our minds clearly indicates that the power or duty to finally and conclusively settle the question of contributory negligence or assumption of risk is, by its terms, transferred from the court to the jury. If this is not the force and effect of the provision, we can conceive of no reason why the framers of the Constitution should have adopted the measure. We think that the evident purpose and intent of the provision is to make the jury the sole arbiter of the existence or nonexistence of contributory negligence or assumption of risk in all actions for personal injuries...." The decision has been uniformly followed ever since by the courts of the state. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276; Campbell v. English, 56 Ariz. 549, 110 P.2d 219.

It is undisputed that the driver of defendant's truck left his side of the road and ran into plaintiff while the latter was striving as best he could to get out of the way. The driver explains his conduct as an effort to avoid injuring plaintiff. Plaintiff insists the driver could have easily avoided the accident by keeping on his own side of the road or by veering his truck farther to the left.

The driver says that when he was within 75 or 80 feet of plaintiff the latter stopped in the graveled portion of the highway and looked at him; that he then took his foot off the brake and, when within 25 or 30 feet of plaintiff, plaintiff moved in front of him; that he did not see anything to do but to swerve to the left, as he did; that the front of his truck struck a guidepost and tore off about an inch of it and 15 feet farther on collided with plaintiff, who at the time was well on the left side of the road. This witness testified that when he first saw plaintiff the latter was about 300 feet away, approaching the road in a kind of dog trot; that at the time of the collision, the truck was going about 20 miles an hour. According to this witness, although he saw plaintiff in the act of crossing the highway in front of him, he did not reduce the speed of his truck below 20 miles an hour. At this point the paved part of the road is 25 feet wide. The plaintiff was on the south side thereof when the driver, according to his statement, was 25 to 30 feet away, traveling at 20 miles an hour. It is difficult to see how plaintiff, in a split second of time, got on the north side and in front of the truck.

Plaintiff testified he stopped on the south side of the road and looked both ways; that he saw defendant's truck approaching from the west, quite a distance away, far enough away for him to cross safely under ordinary conditions; that he started across, keeping the corner of his eye on the truck all the time, and when he got to the middle of the road, just about where the white line is, he noticed the truck veering towards him; that when he first saw the truck it was on its, the right, side of the road; that he hesitated an instant and started across and the truck veered in his direction and hit him, when it was on the wrong side of the road and when he was about across.

We think the evidence was ample to show primary negligence upon the part of the defendant. Davis v. Boggs, 22 Ariz. 497, 199 P. 116.

This disposes of the first two assignments, one being that no negligence on the part of the defendant was shown, and the other that it appears that the proximate cause of plaintiff's injury was his own negligence.

Whether the instructions correctly informed the jury as to its duty under the facts is the remaining question for consideration. At the request of plaintiff, the court instructed the jury as follows:

"You are instructed that an owner of an automobile or truck has the right to use the highways of the state, provided in using them he uses reasonable care and caution for the safety of others. It is the operator's duty to keep his motor vehicle always under control so as to avoid a collision with others using the highway and he has no right to assume that the road is clear, but under all circumstances and at all times must be vigilant and must anticipate and expect the presence of others. And if he fails to use such reasonable care and caution and thereby injures another, such failure on his part would constitute negligence and he would be liable in damages for any injury caused by his negligence."

"You are instructed that pedestrians have a right to travel anywhere upon a public highway and an automobile driver is required to drive carefully to prevent danger to others using the highway. The driver has no right to assume that the road is clear, but under all circumstances and at all times must be vigilant and must anticipate the presence of others and keep his machine under such control as will enable him to avoid collision with other persons using proper care and caution. If you find from the evidence that Phil O. Ratliff, driver of defendant's pick-up truck failed to exercise the required vigilance then your verdict must be for the plaintiff."

The defendant claims that these instructions do "not properly state the law applicable to the facts of the case and placed an unconscionable burden upon the driver of a motor vehicle along a highway, and in substance told the jury that...