Salt River Valley Water Users' Association v. Cornum, Civil 3752

• Citation: 63 P.2d 639,49 Ariz. 1
• Decision Date: 04 January 1937
• Docket Number: Civil 3752
• Parties: SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant, v. MERLE CORNUM, Appellee
• Court: Supreme Court of Arizona

63 P.2d 639

49 Ariz. 1

SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant, v. MERLE CORNUM, Appellee

Civil No. 3752

Supreme Court of Arizona

January 4, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. W. McFarland, Judge. Judgment reversed and cause remanded with instructions.

Messrs Sloan, McKesson & Scott, for Appellant.

Mr. G W. Shute, Mr. Fred O. Wilson, Mr. Chet W. Williams, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by Salt River Valley Water Users' Association, a corporation, hereinafter called the company from a judgment against it and in favor of Merle Cornum, hereinafter called the plaintiff. The evidence taken in the strongest manner in favor of plaintiff, as under the often repeated rule of this court we must take it, presents a somewhat unusual situation, and we summarize it, so far as is necessary for a decision of the case, as follows:

On May 14, 1933, about 10:30 in the morning, plaintiff, a strong and healthy young man just under his majority, had been standing near the southeast corner of the intersection of Lateral 16 and Avenue J, two public highways in the Salt River Valley, talking with his uncle. He then turned away and began walking in an easterly direction along the south side of the pavement on Avenue J. This avenue is a paved public highway running east and west and had been previously designated by the proper legal authorities, pursuant to section 1600, Rev. Code 1928, as a boulevard or through highway. Under the law applying to such highways, all vehicles being operated on the intersecting highway known as Lateral 16, which runs north and south, were required to come to a full stop before entering or crossing Avenue J, and proper stop signs had theretofore been erected at the north and south entrances of Avenue J from Lateral 16, warning all traffic on the latter to come to a stop before entering Avenue J. At some time prior to the date aforesaid the company, as a part of its electrical system and acting under a permit from the board of supervisors of Maricopa county, had erected and maintained near the southeast corner of the intersection of the two highways, and at a distance of about 10 feet from the south edge of the paved portion of Avenue J, an iron pole supporting a power line. This pole was braced or supported by a guy wire, one end of which was fastened near the top of the pole and the other end to an eye bolt firmly anchored in the ground some 60 feet east of the pole, and about 8 feet south of the paved portion of Avenue J. The end of the guy wire passed through the eye bolt, and was reversed and twisted around the main cable and held firmly in place by a clamp. In doing this work, the company had left the end of the guy wire sticking some several inches beyond the clamp, so that it presented a stiff and rodlike end which was unguarded and unprotected. While plaintiff was walking along the south edge of the pavement, as aforesaid, a Chevrolet automobile owned by W. E. Choisser, which was being driven at a high rate of speed in an easterly direction along Avenue J, entered the intersection of the two highways. At the same time a Whippet sedan automobile owned by Charlie Vaughn was traveling in a southerly direction on Lateral 16 and entered the intersection without coming to a stop, as required by law, and collided with the Choisser car. After such collision and as a result thereof, the latter car was rendered unmanageable and its driver lost control of it so that it continued across the intersection in a southeasterly direction towards plaintiff. The latter heard the crash and looked around in time to see the Choisser car apparently coming straight at him. In order to avoid the imminent danger, he turned and ran towards the guy wire intending to take refuge behind it, and reached it at the point where the wire projected from the clamp, when the projecting end caught his clothing and prevented him from proceeding further until the Choisser car struck him. As a result of the impact, his leg was badly mangled, whether by the car, the sharp wire, or both being uncertain, and eventually it was necessary to remove the leg. He brought this action against the company, Choisser, and Vaughn as joint tort-feasors, alleging that defendants were guilty of concurrent negligence, the company in allowing the projecting wire to be in the condition in which it was, Choisser in driving his car at a dangerous and excessive rate of speed on Avenue J, and Vaughn in entering Avenue J without coming to a stop at the intersection.

The case was tried to a jury, which at the first trial returned a verdict in favor of plaintiff against Choisser and the company for $8,800, no verdict being returned either against or in favor of Vaughn. The company moved for a new trial, which was granted, and at the second trial a verdict was returned against it for $5,000. Choisser did not ask for a new trial nor appeal from the verdict and judgment against him.

There are two questions only raised by the assignments of error on this appeal, which are necessary for us to consider. The first is, Does the evidence in the case show concurrent negligence on the part of the company and Choisser? and the second, Was the action of the company in maintaining its guy wire in the above described condition a proximate cause of the accident? We will consider these questions in their order.

The general rule in this jurisdiction in regard to concurrent and separate acts of negligence and liability therefor is laid down in the case of White v. Arizona Eastern R.R. Co; 26 Ariz. 590, 229 P. 101. In that case there was a collision between a truck driven by the intestate and a train operated by the railroad company, and it was claimed there was joint liability on the part of the intestate's employers, a stage line company, and the railroad company. The negligence of the employer was alleged to have been in providing a truck for the intestate to drive which was faulty in its braking system, and in requiring the intestate to work so long and continuously that he could not properly operate the truck with the defective brakes. The negligence of the defendant railroad company was alleged to have been a failure on the part of the engineer of the train which collided with the truck to give a proper signal at the crossing where the collision occurred, and the maintaining of an obstruction near said crossing which prevented approaching vehicles from seeing trains on the track until it was too late to stop. In that case, as in this, the objection was raised that there was no joint nor concurrent negligence, and that the defendants were improperly joined in the action. In the opinion, we said as follows:

"We think beyond question the complaint shows the accident in which deceased met his death was the result of two separate distinct, and independent causes, one being a faulty brake and a debilitated physical and mental condition, due to overwork and lack of sleep, for which his employers were responsible, and the other the negligence of the railroad company. These causes not only have different sources, but do not coincide in time or place. The act or omission of the 'stage line' defendants, as set forth in the complaint, antedates the accident some time. Their act consisted in turning over to a wornout and exhausted employee the truck without sufficient brakes at a time prior to the collision, and in which act the other defendant (the railroad company) had and took no part, and could by no principle of law we are familiar with be responsible for. Likewise the 'stage line' defendants could not be charged with the negligence of the railroad company in permitting its right of way at crossing to become obstructed by brush or trees, and in its failure to ring bell or adequately warn at crossing. These acts and omissions of duty were personal to the defendant railroad company and no one else. The negligences laid at the door of these separate defendants as the bases of a claim for damages sustained in the accident described were not current or joint, but separate, distinct, and independent of each other.

"Because unconnected, unrelated acts of different persons or corporations accidently or fortuitously may have influenced an injury and damage, it does not necessarily follow that such persons or corporations are joint tort-feasors. If A. beats C., and B., while C. is wounded and worn from such beating, acting independently of A., administers another beating to C., from which he dies, A. and B. are not joint tortfeasors and jointly liable for C's. death, although C. might not have died had B. not beaten him. There must exist some community of purpose or wrong or fault to give rise to joint liability. This we think is the settled rule. To constitute a joint tort the wrong must be joint. A tort may be committed by one person or by several, but the tort is always single. The general rule on this point we think is very well stated in Dickson v. Yates, 194 Iowa 910, 917, 188 N.W. 948, loc. cit. 951 , wherein it is said:

"'Only when two or more persons act in concert of action to commit a common tort are they joint tortfeasors. If the tort of two or more parties is several when committed, it does not become joint by reason of the union of the consequences of the several torts in producing an injury.... Although joint tort-feasors are jointly and severally liable, it is hard to conceive a tort "at once joint and separate." Ramsey v. Cedar Rapids & M. Ry. Co. et al., 135 Iowa 329, 112 N.W. 798. When two or more parties act each for himself in producing a result injurious to the plaintiff they are not jointly liable.... There must be concurrent action, a co-operation or concert in the...