Sax v. Kopelman, No. 7350

• Court: Supreme Court of Arizona
• Writing for the Court: BERNSTEIN; UDALL
• Citation: 96 Ariz. 394,396 P.2d 17
• Parties: Frank D. SIX, and Mabel Sax, husband and wife, and Beverley B. Sax, Appellants, v. Bernard Lee KOPELMAN and Sandra F. Kopelman, husband and wife, Appellees.
• Decision Date: 21 October 1964
• Docket Number: No. 7350

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396 P.2d 17 96 Ariz. 394 Frank D. SIX, and Mabel Sax, husband and wife, and Beverley B. Sax, Appellants,
v.
Bernard Lee KOPELMAN and Sandra F. Kopelman, husband and wife, Appellees. No. 7350. Supreme Court of Arizona, In Banc. Oct. 21, 1964.

[96 Ariz. 395]

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McKesson, Renaud & Cook, Phoenix, for appellants.

Langerman & Begam, Phoenix, for appellees.

BERNSTEIN, Justice.

Appellants were defendants in a suit arising out of an automobile accident. During the course of the trial the defendants made motions for a directed verdict and, after a verdict and judgment for the plaintiffs, made motions for judgment n. o. v. and for a new trial. All of these motions were denied and defendants appeal from the judgment against them.

At 8:00 A.M. on the morning of the accident defendant Beverley Sax, daughter of the other two defendants took the older of two family cars to drive a friend to school. The car was a 1951 Lincoln. Beverley drove east on Garfield Street toward 16th Street in Phoenix. Sixteenth Street is a four-lane favored highway and Garfield Street is a two-lane street which crosses it. There are stop signs on Garfield at the point it intersects with 16th Street.

The morning of the accident, 16th Street was very congested with morning rush hour traffic. Mrs. Kopelman was driving her husband to work and was traveling 20 to 25 miles per hour. She was going south on 16th Street and was traveling in the [96 Ariz. 396] lane next to the curb. Beverley was also traveling 20 to 25 miles per hour. About 100 feet from 16th Street she stepped on the brakes to stop at the 16th Street stop sign. The brakes failed and did not slow her car. By the time she came to the intersection the car had lost some momentum and was going from 15 to 20 miles per hour. Just before Beverly came to the intersection she pulled the mechanically operated emergency brake all the way on but it did not work either. Beverley testified she had not tested or had occasion to use either the hand or foot brake from the time she left the house until she unsuccessfully tried to stop the car. As she came to the corner of Garfield and 16th Streets Beverley swerved to the right and with her left front fender hit the car in which the plaintiffs were driving. The impact on plaintiffs' car was at the right side.

Defendants' assignments of error fall into three catagories: (1) The trial judge erred in charging the jury on the lack of contributory negligence; (2) there was no evidence of negligence, and (3) the verdict was excessive.

The judge charged the jury that there was no evidence of contributory negligence and that the issue of contributory negligence was to be decided in favor of the plaintiffs. Appellants contend that the giving of this instruction was a comment on the evidence and is in violation of Art. 18, § 5, Arizona Constitution, A.R.S. The instrucion is not a comment on the evidence. It is a mandatory instruction on one of the issues in the case. As such it has the effect of a directed verdict on that issue.

We have held that Art. 18, § 5, Arizona Constitution prohibits the trial judge from instructing the jury that they 'must' find for the defendant on the issue of contributory negligence. Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444; Lutz v. Faith, 95 Ariz. 40, 386 P.2d 85. But this does not mean that the trial judge must submit the issue of contributory negligence to the jury where there is no evidence from which a reasonable man could find the plaintiff guilty of contributory negligence.

As we said in Morris v. Aero Mayflower Transit Co., 73 Ariz. 390, 394, 242 P.2d 279, 281:

'We therefore hold that the trial court erred in submitting the question of contributory negligence to the jury for the reason that there is no evidence in the record from which the jury could have reasonably inferred that plaintiffs were on the west half of 48th Street when struck by the Reilly car. Even though an issue may be raised by the pleading, [96 Ariz. 397] unless it is supported by evidence it is not proper to instruct upon it.' (Emphasis supplied.)

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See also Mitchell v. Colquette, 93 Ariz. 211, 379 P.2d 757;...