Peterson v. Salt River Project Agr. Imp. & Power Dist.

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN; LOCKWOOD, V. C. J., STRUCKMEYER; UDALL
• Citation: Peterson v. Salt River Project Agr. Imp. & Power Dist., 391 P.2d 567, 96 Ariz. 1 (Ariz. 1964)
• Decision Date: 16 April 1964
• Docket Number: No. 7174,7174
• Parties: Harold PETERSON and Viola Peterson, his wife, Appellants, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DISTRICT, Appellee.

Page 567

391 P.2d 567

96 Ariz. 1

Harold PETERSON and Viola Peterson, his wife, Appellants, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DISTRICT, Appellee.

No. 7174.

Supreme Court of Arizona, In Banc.

April 16, 1964.

Bayham & Huffsteter, Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, by Charles R. Esser, Phoenix, for appellee.

BERNSTEIN, Justice.

This is an appeal from a directed verdict in favor of the defendant in a motor vehicle accident case.

Harold Peterson and his wife Viola sued the Salt River Project Agricultural Improvement & Power District for damages arising from a collision occurring at the intersection of Twenty-second Street and Lincoln Street in Maricopa County. An automobile being operated by Harold Peterson collided with the end of a power pole being towed by a semi-truck and pole trailer owned by the defendant Power District and being driven by Harry Marshall.

The evidence, which was largely uncontradicted, shows that Marshall, an employee of the defendant was driving a 1954 Cabover semi-truck towing a pole trailer upon which was loaded a power pole approximately 70 feet in length. The semi-truck was traveling in a southerly direction on Twentieth Street north of Lincoln Street. The pole trailer was expanded to its full length of 35 feet. The pole projected over the end of the trailer approximately 30 feet. A square red flag was attached to the end of the pole by a 12 inch spreader wire. Marshall testified that this flag was 12 inches square.

After Marshall crossed Buchanan Street, the first street north of Lincoln, he observed in his rear view mirror a gray car turn right onto Buchanan Street. At that time he made a right hand turn signal at a point approximately 200 feet north of Lincoln Street, indicating his intention to turn right onto Lincoln. This signal was made with an electric arm signal approximately 18 inches in length. At this time he was traveling approximately 15 to 20 miles an hour. At the same time he made his right turn signal, he applied the brakes and continued to slow down until he reached the Lincoln Street intersection. During the period of his travel to Lincoln Street after he had put up his right turn signal, he again looked in his rear view mirror and observed no car close behind him or at least not within a distance of 100 feet to the north. As he approached the Lincoln Street intersection, he had slowed to approximately 5 miles per hour and he shifted down to third gear. He proceeded south past the center line of Lincoln Street and then commenced the right turn of his cab into the left portion of Lincoln, but the front of his cab remained on the right hand side of Twentieth Street. Just before he made his right turn onto Lincoln, he observed that there was no traffic toward him or from his right or left on Lincoln. From six to seven seconds after he had commenced his turn onto Lincoln and after his cab had travelled a distance of 35 to 40 feet, he felt a slight nudge and brought his vehicle to a halt within 3 to 4 feet. Upon looking behind him he observed that the end of the pole had pivoted through the right windshield (at approximately a 45 degree angle) of the car operated by Peterson. The pole struck Mrs. Peterson, who was riding in the middle of the front seat, in the side of the face.

The Deputy Sheriff who investigated the accident, testified that he made measurements of the vehicles at rest after the accident and found that the plaintiffs' car had come to rest on the left side of the road with both left wheels 2 feet west of the east or left edge of Twentieth Street. The left front wheel was 35 feet north of the north edge of Lincoln. He determined that 2 feet 6 inches of the pole went through the windshield of the automobile. He testified that he observed tire scuff marks on the ground indicating that the plaintiffs' vehicle had slid slightly sideways while it was going forward after the point of impact, but that the scuff marks left by the Peterson car were entirely on the left hand side on the pavement. He determined that the point of impact between the end of the pole and the windshield was 9 feet west of the east or left edge of Twentieth Street and 44 feet 6 inches north of the north edge of Lincoln.

Plaintiff Harold Peterson testified that he and his wife and children were driving south on Twentieth Street at approximately 5:30 P.M. on the same date. He was driving a 1948 Chevrolet. Mrs. Peterson was seated next to him with his daughter Helen on the outside next to the door and his daughter Caroline in the back. He further testified that he turned onto Twentieth Street from Madison and that as he first commenced traveling south he noticed the semi-truck and pole trailer and a gray car also proceeding south ahead of him on Twentieth Street. The semi-truck was going over the railroad tracks at the time and that the gray car was behind the semi-truck. At this point the railroad track was a block and a half ahead of where he observed it. He and his wife saw the pole on the back of the pole trailer bouncing up and down and 'we spoke of it as being hazardous looking.' He testified that he observed the gray car turn off onto Buchanan, just below the railroad tracks, to the west, and that he was traveling at that time at a speed of approximately 18 to 20 miles per hour as he approached Buchanan. At the point where the gray car turned onto Buchanan he was 'a car length or two behind it'. He slowed down to permit the car to make the turn onto Buchanan and then proceeded south on Twentieth Street at about 15 to 18 miles per hour. He still observed the semi-truck and pole trailer ahead of him as he crossed the intersection of Buchanan and Twentieth Street at a distance of 'approximately a car length or two'. He was approximately one-third of the distance between Buchanan and Lincoln when the 'trailer suddenly slowed down'. His counsel asked him the following question: 'I take it you did not observe any arm signal', and he answered, 'No, sir'. He also testified that he did not observe anything attached to the pole in any manner whatsoever and at no time was there visible to him a red flag attached to the pole. He testified that he then noticed the pole 'going to the right'; that he put on his brakes and 'it swung around to the left and this is when it went through my windshield, approximately a 45 degree angle'.

At the close of the plaintiffs' case, the defendant moved the court to instruct the jury to return a verdict for the defendant upon the grounds that upon the undisputed evidence as presented during the plaintiffs' case there was no evidence of any negligence on the part of the defendant which proximately caused the injuries sustained by the plaintiffs and that as a matter of law the plaintiffs had failed to sustain the burden of proof of negligence of the defendant. The motion was granted.

This Court has consistently held that the trial court is justified in directing a verdict only where the evidence is insufficient to support a contrary verdict or so weak that the Court would feel constrained to set aside such a verdict on a motion for a new trial. In viewing the evidence to determine whether it is such that reasonable men might conclude the fact of negligence, such evidence must be viewed in a light most favorable to him who urges that it be submitted to the jury as against the party who urges that no jury question has been presented. Golfinos v. Southern Pacific Company, 86 Ariz. 315, 318, 345 P.2d 780 (1959).

While the evidence in this case is not conflicting in any important particular, there is room here for fair and reasonable men to differ in the inferences to be drawn from the evidence.

In Bryan v. Southern Pacific Company, 79 Ariz. 253, 260, 286 P.2d 761, 765, 50 A.L.R.2d 1 (1955), in holding that the safety rules of the employer were admissible, this court said:

'Negligent conduct may be predicated upon the doing of an act which a reasonable man should realize involves an unreasonable risk of causing harm to another. Restatement of the Law of Torts, Section 284. It is the risk reasonably to be perceived which defines the duty to be obeyed.' (Emphasis in original).

In Dorris v. Bridgment & Co., 296 Pa. 198, 145 A. 827 (1929), a pedestrian was struck by iron pipes overhanging 5 feet from a trailer. The court said at page 829 of 145 A.:

'As plaintiff came to the curb, she stepped down two feet, and waited for the truck to pass. The truck pulled out of the car tracks to get around a street car, and then swung back toward the tracks. This caused a fanlike motion of the pipes in the rear of the trailer, with the projection out 2 feet as a hook; its movement was like the swinging of a scythe, mowing down objects in the way. In this zigzag motion of the car, it caught the plaintiff.'

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'Where a truck and trailer travel on a highway, the zone of apprehensible danger includes, not only objects immediately in front, but such objects as may come within the swinging, swaying, or swerving radius of the trailer. (Emphasis supplied.)'

In order to determine whether this case should be submitted to the jury, it is unnecessary to determine whether defendant's rig was a 'dangerous instrumentality'. This may be one of the fact questions properly within the province of the jury. Since the question has been raised by appellant, however, it should be pointed out that 70-foot poles similar to the one being transported in this case have been held to be 'dangerous instrumentalities.' Barzen v. Kepler, 125 Kan. 648, 266 P. 69 (1928). See also Moore v. Nisley, 133 Neb. 474, 275 N.W. 827 (1937) citing both Dorris and Barzen with approval. Improvements in the design of pole carrying vehicles may have removed them from any category of 'unusual and dangerous instrumentalities'. But the nature of the 70-foot pole itself, with a 30-foot overhang, has not changed. Both our case and Barzen involve 70-foot poles...