Schmidt v. Gibbons

• Decision Date: 31 March 1966
• Docket Number: CA-CIV
• Citation: 412 P.2d 716,3 Ariz.App. 147
• Parties: Florence SCHMIDT, surviving spouse of Frank J. Schmidt, deceased, individually, and for and on Behalf of Gail Schmidt, surviving daughter of Frank J. Schmidt, deceased, Appellant, v. J. L. GIBBONS and Frances Gibbons, his wife, dba Arizona Cement Transportation Company, and William D. Eisele and Irene Eisele, his wife, Appellees. * 1291.
• Court: Arizona Court of Appeals

Page 716

412 P.2d 716

3 Ariz.App. 147

Florence SCHMIDT, surviving spouse of Frank J. Schmidt, deceased, individually, and for and on Behalf of Gail Schmidt, surviving daughter of Frank J. Schmidt, deceased, Appellant, v. J. L. GIBBONS and Frances Gibbons, his wife, dba Arizona Cement Transportation Company, and William D. Eisele and Irene Eisele, his wife, Appellees. ^*

1 CA-CIV 291.

Court of Appeals of Arizona.

March 31, 1966.

Belli, Ashe, Gerry & Ellison, by Robert L. Lieff, San Francisco, Cal., for appellant.

Fennemore, Craig, Allen & McClennen, by Calvin H. Udall, Phoenix, for appellees.

MOLLOY, Judge.

This is an appeal from judgment entered upon a jury verdict favoring the defendants in a wrongful death action arising out of an automobile driven by the decedent colliding with the rear end of a parked truck. The facts of the controversy are of limited importance since the only issues raised on appeal relate to the giving, over objection, of instructions on contributory negligence, and questions relating to the admissibility in evidence of opinion testimony of experts.

The defendants below, appellees in this court, properly alleged the affirmative defense of contributory negligence in their answer to the plaintiff's complaint, and the trial court instructed the jury as follows:

'I instruct you that the driver of an automobile at night is negligent if he collides with an object which he has failed to see, and which an ordinarily prudent driver under like circumstances would have seen and with reasonable care could have avoided.

'If you find that plaintiff's decedent, Frank J. Schmidt, negligently failed to control his vehicle, and negligently failed to see the defendants' truck and trailer, and that this negligence proximately caused or proximately contributed to the cause of his death, Then the plaintiff is not entitled to recover.

'Ordinarily it is a question of fact for the jury to decide whether particular conduct was negligent. Such is not the case, however, where a person violates a specific rule made by the legislature to govern the kind of conduct in question. Where an automobile driver violates a statute or ordinance enacted for the safety of persons or property such a violation is negligence as a matter of law.' (Emphasis added)

The foregoing was among other instructions upon the subject of contributory negligence as to which there is no complaint. Among these instructions was an instruction delineating the factual issues of the case and informing the jury that if its finding on contributory negligence were favorable to the position of the defendants:

'* * * then you May find for the defendants, but if you find that the plaintiff's decedent was not guilty of contributory negligence, you Must find for the plaintiff, * * *.' (Emphasis added)

In Arizona it has become increasingly perilous for a trial court to instruct a jury regarding contributory negligence. The peril arises from the confusion which surrounds the law of contributory negligence as a result of decisions handed down in recent years. Today trial judges in this state are caught betwixt and between, due to an essential conflict between their duty to declare the law and the danger that a choice of language will be deemed reversible error on appeal. In view of the perplexity with which the trial bench is faced in this regard, we deem it desirable to review the law governing instructions on contributory negligence at this time.

The Constitution of Arizona, provides art. 18, § 5, A.R.S., that:

' § 5. Contributory negligence and assumption of risk.

'Section 5. 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.'

Although article 18 of the Arizona Constitution, in which the above quoted provision is found, is dedicated to a consideration of labor law, it has been held that questions regarding contributory negligence are jury questions in all negligence actions. Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325 (1947). It has been in the general field of negligence litigation divorced from labor law that the most significant decisions interpreting the constitutional provisions of article 18, section 5, have been rendered.

Two distinct but interrelated questions must be considered with reference to contributory negligence instructions: first, instructions which purport to define contributory negligence in terms of specific conduct, and second, instructions which deal with the jury's duty subsequent to its determination that the facts in issue do in fact constitute contributory negligence. The leading case representing the former proposition is Wolfswinkel v. Southern Pacific Company, 81 Ariz. 302, 305 P.2d 447 (1956), amplified, 82 Ariz. 33, 307 P.2d 1040 (1957); for the latter, Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).

DEFINITION OF CONTRIBUTORY NEGLIGENCE

In Varela v. Reid, 23 Ariz. 414, 204 P. 1017 (1922), the Supreme Court noted that article 18, section 5, of the Arizona Constitution, was taken from article 23, section 6, of the Constitution of the State of Oklahoma and observed that:

'The Oklahoma Supreme Court, construing the constitutional provision of that state, has held that the court is precluded thereby from instructing the jury whether the facts do or do not constitute contributory negligence.' 23 Ariz. 414, 420, 204 P. 1017, 1019 (1922).

See Pioneer Hardwood Co. v. Thompson, 49 Okl. 502, 153 P. 137 (1915), Wichita Falls & N.W. Ry. Co. v. Woodman, 64 Okl. 326, 168 P. 209 (1917).

The court, in Varela, went on to say:

'We have no doubt that the court may properly tell the jury what constitutes in law the defense of contributory negligence. That defense has not been abolished by our Constitution, and the use of the term implies that the courts are bound to know and declare it for what it is, to recognize its sufficiency in law when pleaded and proof is offered to sustain the plea, and to delimit and define its boundaries from other permissible defenses and pleas. On the other hand, as is held in the cases cited (decided by this court), the finding of the jury on the question is conclusive, by which is meant that, whether the facts found or believed by the jury do or do not show that the act or omission charged was negligent, as, in truth, lacking in care, and whether, if so lacking, it contributed to or caused the injury is solely a question for the jury to decide.' (Emphasis added) 23 Ariz. 414, 421, 204 P. 1017, 1020 (1922).

In Wolfswinkel v. Southern Pacific Company, 81 Ariz. 302, 305 P.2d 447 (1956), the Supreme Court considered the following instruction:

"* * * You are instructed that if you find from a preponderance of the evidence that Clarence Wolfswinkel failed to exercise proper vigilance or failed to yield the right-of-way to the approaching train and that such failure contributed, however slightly, to the collision, then you must find Clarence Wolfswinkel to have been guilty of contributory negligence." 81 Ariz. 302, 305--306, 305 P.2d 447, 450 (1956).

After reviewing the previous cases dealing with contributory negligence instructions, especially Varela v. Reid, supra, the court concluded;

'We therefore hold that Instruction No. 9 violates Article XVIII, Section 5, of the Arizona Constitution, in that the trial court improperly instructed the jury that if they found certain facts to exist the plaintiff was guilty of contributory negligence. This incorrect statement of the law constitutes reversible error.' 81 Ariz. 302, 307, 305 P.2d 447, 451 (1956).

On rehearing, 82 Ariz. 33, 307 P.2d 1040 (1957), the court amplified its position in the first Wolfswinkel case:

'It is permissible for the court to instruct that if it finds hypothetical facts to exist which as a matter of law would be negligence on the part of a defendant, it may find the defendant to have been negligent and that if such negligence was the proximate cause of the accident and injury, the plaintiff should recover, Pearson & Dickerson Contractors, Inc., v. Harrington, 60 Ariz. 354, 137 P.2d 381; but the legal conclusion of negligence must necessarily follow from the stated facts. Southern Pacific Company v. Bolen, 76 Ariz. 317, 264 P.2d 401. We know of no good reason why the same rule should not be permissible when the court is instructing the jury what is contributory negligence. True, the jury under our constitution is the final arbiter but to enable the jury to make its decision according to law (which presumably under its oath it would do), It is entitled to know what under the law would be negligence on the part of the plaintiff, as tested by the acts of a reasonable, prudent person under like or similar circumstances, and when that negligence would amount to contributory negligence. This form of instruction in no way takes from the jury its constitutional right to judge for itself the ultimate questions of whether plaintiff was negligent and if so, whether such was a proximate contributing cause of the injury.

'The questioned instruction is wrong. The jury was told in effect that if plaintiff failed to yield the right of way he was negligent. In fact, he did fail to do so, else there would have been no accident and his failure necessarily contributed thereto. It does not necessarily follow that plaintiff was negligent for failing to yield the right of way. As bearing on negligence, the important thing is whether under all the circumstances in the exercise of due care, he should have yielded. The circumstances might be such that one not yielding the right of way was in no respect negligent.

'This instruction was in form mandatory. In fact, it was in effect an instructed verdict for the defendant on the question of contributory negligence. As stated, plaintiff failed to yield the right of way and such failure contributed to the accident. The jury was told that under such circumstances, it must find for the...