Schneider v. Macari
Decision Date | 03 April 1975 |
Docket Number | No. 11694,11694 |
Citation | 533 P.2d 540,111 Ariz. 483 |
Parties | Jay SCHNEIDER, a minor by his next best friend, Edgar Schneider, Appellant, v. Patricia MACARI and Jess Macari, her husband, Appellees. |
Court | Arizona Supreme Court |
Meadow, Cheche, Nastro & Thrasher by Kenneth A. Winsberg, Phoenix, for appellant.
Lewis & Roca by John P. Frank, John A. Miller, T. Michael Daggett and Mary M. Schroeder, Phoenix, for appellees.
This is an appeal from a judgment in favor of defendant-appellee, Mrs. Patricia Macari, and from an order denying plaintiff-appellant Jay Schneider's motion for new trial.
We consider only one question on appeal and that is: Was it error for the trial judge to refuse to instruct the jury on the doctrine of last clear chance?
We must view the evidence in the strongest possible light to support the plaintiff-appellant's position, Evans v. Dineen, 105 Ariz. 44, 459 P.2d 304 (1969); Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30 (1939); Towers v. Johnson, 11 Ariz.App. 455, 465 P.2d 592 (1970). We agree with the facts stated in the appellant's brief as follows: heads over the fence in the alley running towards the street upon which she was traveling. One of these boys was the appellant Jay Schneider. Although the appellee, Mrs. Macari, saw the boys running towards the street, she thought the boys would slow down.
'The weather was clear at the time and the road conditions were good.
Trial was held before a jury. The plaintiff requested a last clear chance instruction which was denied. The jury found for the defendant and plaintiff appealed alleging as error the failure of the trial court to give an instruction on last clear chance.
The doctrine of 'last clear chance' is designed to determine proximate cause of an accident in a case wherein the defendant has alleged that the plaintiff is guilty of contributory negligence. Sheehy v. Murphy, 93 Ariz. 297, 380 P.2d 152 (1963); Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913 (1963); Wilson v. Sereno, 11 Ariz.App. 35, 461 P.2d 514 (1970). We have stated:
Odekirk v. Austin, 90 Ariz. 97, 102, 366 P.2d 80, 83 (1961).
In the instant case we agree with plaintiff that the plaintiff has negligently subjected himself to a danger. We are not...
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