Sheehy v. Murphy

• Decision Date: 04 April 1963
• Docket Number: No. 6820,6820
• Citation: 93 Ariz. 297,380 P.2d 152
• Parties: Martha SHEEHY, Appellant, v. Berle Branton MURPHY and Michael Murphy, Appellees.
• Court: Arizona Supreme Court

Page 152

380 P.2d 152

93 Ariz. 297

Martha SHEEHY, Appellant, v. Berle Branton MURPHY and Michael Murphy, Appellees.

No. 6820.

Supreme Court of Arizona, In Banc.

April 4, 1963.

Stockton & Aldrich, Robert Ong Hing, Phoenix, Robert F. Byrnes, Scottsdale, and Joseph P. Lewis, Phoenix, for appellant.

O'Connor, Anderson & Westover, Phoenix, for appellees.

JENNINGS, Justice.

Martha Sheehy (plaintiff) sued for injuries sustained when struck by an automobile driven by Michael Murphy (defendant). A verdict was returned for the defendant. The plaintiff's motion for new trial was denied and she appeals.

The accident occurred at about 9:40 p. m. December 22, 1955 on north Central Avenue in Phoenix. About two hundred feet north of Indianola the plaintiff started walking east across Central Avenue. There was no pedestrian crosswalk at this point. The street was well-lighted and made up of four lanes of traffic--two southbound and two northbound.

When plaintiff had corssed to the center of the street, which was designated by double white lines, southbound traffic had slackened. However, the northbound traffic remained heavy. Defendant Murphy was driving north in the heavy traffic at a speed of thirty miles per hour and about thirty to forty feet behind the car ahead of him. The posted speed limit was thirty-five miles per hour.

The defendant first saw the plaintiff when she appeared by the left rear fender of the car in front of him. The defendant, who was the only witness able to testify to the actual collision, stated that the plaintiff stepped or jumped in front of him and that he instinctively swerved his car to the left across the double white lines in order to avoid striking her. The point of contact between the plaintiff and defendant's automobile was near the right front headlight. There were no skid marks and defendant testified that he did not have time to sound the horn or apply the brakes.

The plaintiff urges numerous assignments of error concerning the instructions given and refused by the trial court. Assignments 3, 4, 5, 6, 7 and 8 involve instructions which the plaintiff contends did not define adequately the standard of care required of the defendant. We cannot agree. We find that the court correctly set forth the defendant's duty in all material respects.

Generally speaking, a motorist must exercise reasonable care toward pedestrians. But where a pedestrian is standing in a place of comparative safety and apparently sees an approaching automobile, the driver has the right to assume that the pedestrian will remain in that place of safety and will not suddenly step into the path of his automobile. Trainor's Adm'r. v. Keller, 257 Ky. 840, 79 S.W.2d 232 (1935); Bechtel v. Oriol, 52 So.2d 589 (La.App.1951); Annot. 113 A.L.R. 528 (1938). Further, when a person, who without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the presence or appearance of imminent danger to himself or to others, he is neither expected nor required to use the same judgment and prudence that is required of him in calmer and more deliberate moments. His duty is to exercise only that care which an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by an ordinarily prudent person under the same conditions, he does all the law requires of him, although, in the light of after-events it should appear that a different course would have been better and safer. Christensen v. Bergmann, 148 Cal.App.2d 176, 306 P.2d 561 (1957); Annot. 80 A.L.R.2d 5 (1961). See Henderson v. Breesman, 77 Ariz. 256, 269 P.2d 1059 (1954); Western Truck Lines, Ltd. v. Berry, 52 Ariz. 38, 78 P.2d 997 (1938).

Considering the facts most strongly in favor of the plaintiff, the most that can be said in support of her theory of defendant's negligence is that it was nighttime and the traffic was heavy. On the other hand, the defendant was a healthy young man with normal or better reaction time. The automobile he was driving was new and the equipment thereon in good condition. The street was well-lighted, level, wide and the surface was dry. The plaintiff was the only pedestrian in the vicinity and there was no crosswalk at the point at which she entered the roadway. The defendant was traveling at thirty miles per hour in a thirty-five mile per hour zone. Traffic was flowing steadily and defendant followed the car ahead of him by approximately two carlengths. In view of these circumstances the record does not disclose any negligence on the part of the defendant up to the time he first saw the plaintiff.

At this point the evidence clearly shows that the plaintiff was looking in the direction of the defendant; that she appeared to be aware of his approach; and that she had yielded to the vehicles preceding him. It is equally clear that a pedestrian who is standing...