Snethen v. Gomez

• Decision Date: 26 October 1967
• Docket Number: CA-CIV
• Citation: Snethen v. Gomez, 432 P.2d 914, 6 Ariz.App. 366 (Ariz. App. 1967)
• Parties: John SNETHEN, Appellant, v. Vidal GOMEZ, Jr., and Jane Doe Gomez, husband and wife, and Harold W. Mouser, Appellees. 1312.
• Court: Arizona Court of Appeals

Page 914

432 P.2d 914

6 Ariz.App. 366

John SNETHEN, Appellant, v.Vidal GOMEZ, Jr., and Jane Doe Gomez, husband and wife, and Harold W. Mouser, Appellees.

1 CA-CIV 312.

Court of Appeals of Arizona.

Oct. 26, 1967.

Rehearing Denied Nov. 28, 1967.

Review Denied Jan. 9, 1968.

Patrick W. O'Reilly, Phoenix, for appellant.

Lewis Roca, Scoville, Beauchamp & Linton, by James Moeller, John L. Hay, Phoenix, for appellees Gomez.

Jennings, Strouss, Salmon & Trask, by Thomas J. Trimble, Phoenix, for appellee Mouser.

WILLIAM W. NABOURS, Superior Court Judge.

This action was brought by the Appellant, plaintiff below, against the Appellees, defendants below, for personal injuries received by the plaintiff as the result of an airplane crash in which he had been riding as a passenger and which was piloted by the defendant Mouser and co-owned by the defendant Gomez and a third party who is not a party to this action but who was riding in the plane at the time of the crash.

On September 10, 1961, the plaintiff, the defendants Gomez and Mouser, a Mr. Reeves and a Mr. Chavez, left Phoenix in a 1954 D--18 Twin Beach airplane bound for the landing strip at Lukeville, Arizona, which is located just north of the Mexican border.The landing strip at Lukeville is a dirt strip approximately 2400 feet in length with a 800 foot overrun.The plane left Phoenix at approximately 1:30 or 2:00 o'clock p.m. and arrived at Lukeville approximately one hour later.Piloting the plane was the defendant Mouser with Gomez in the co-pilot's seat and the other three men seated behind them in the cabin.When the plane arrived at Lukeville, Mouser flew low over the strip twice from north to south to observe the condition of the landing strip.On the third approach the plane touched down but instead of completing the landing the throttles were advanced and the plane took off, went a couple of hundred feet into the air and then nosed down and crashed some 1000 feet past the end of the runway.All of the passengers were able to walk away from the plane after the crash.The plaintiff had his seat belt fastened but was thrown forward against the seat ahead of him and suffered injuries.

At the trial there was substantial conflict in the evidence concerning the cause of the crash.Mouser testified that as the plane was coming up one of the plane's two motors failed.Other evidence showed that Gomez interfered with the pilot's control.There was some evidence that a landing should never have been attempted at all due to the size of the landing strip, the temperature of the air and other factors that enter into the operation of an airplane.

There was also a conflict in the evidence as to the nature and extent of the plaintiff's injuries.

At the conclusion of the trial the jury was given four forms of verdicts to use in returning a verdict.One provided for a judgment against both defendants.Another provided for judgment for both defendants as against the plaintiff.The other two were individual verdicts against each defendant and in favor of the plaintiff.

The jury returned a verdict finding against the plaintiff as to both defendants.

The plaintiff then moved for a new trial and judgment n.o.v. and upon the denial of the motion this appeal was taken.

This appeal raises four questions, all relating to the Court's instructions or refusal to instruct as requested by the plaintiff.

The first question presented raises the question as to whether the following instruction constitutes prejudicial error that compels a reversal of the judgment.The Court instructed near the beginning of the instructions that:

'If you find that the defendants, Or either of them in this case, are not liable, then I charge you that the question of damages is wholly immaterial and should not be considered by you at all.'(emphasis supplied)

Neither counsel for the defendants nor for the plaintiff made any objections to the instruction and did not call the Court's attention to the alleged erroneous instruction until after the verdict was returned.It was only while preparing his motion for a new trial that plaintiff's counsel discovered the assigned error.

The only question to be determined is whether the error was so fundamental that it requires a reversal in the absence of any objection by counsel before the jury retired.It has been consistently held that counsel cannot allow an instruction to be given, make no objection, wait until the verdict is in and then raise an objection.General Petroleum Corp. v. Barker, 77 Ariz. 235, 269 P.2d 729(1954), and authorities cited therein.

A review of all the instructions lead us to the conclusion that the inadvertent wording of the instruction complained of did not constitute fundamental error.The Court instructed that:

'Should you find that the plaintiff has, as a result of the negligence of the defendants, Or either of them, suffered injuries which are reasonably certain to be permanent in nature, then I instruct you that will may award the plaintiff such sums that will reasonably and fully compensate him for the future effect of these injuries'.(Emphasis Supplied)

Other instructions to the same general effect together with the forms of verdicts remove any question that the jury was misled.

The second question presented pertains to the refusal of the Court to give plaintiff's requested instruction Number 9 on the doctrine of res ipsa loquitur.This doctrine has been the subject of numerous decisions and consistently causes great concern to Court and counsel.In spite of the many decisions relating thereto it persistently continues to be the subject of great argument and contrary opinions.The Supreme Court of Arizona in speaking on the doctrine made this pronouncement:

'The principal theory underlying this doctrine is that under the circumstances of the case and because of such circumstances there is an inference of negligence.The doctrine applies only where the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in their very nature they carry a strong inherent probability of negligence and, in the light of ordinary experience the occurrence would presumably not have happened if those who had the exclusive management or control of the agency of instrumentality alleged to have caused the injury, had exercised proper care.Obviously, the rule cannot be invoked where the cause of the accident is wholly a matter of conjecture.Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952.It is not the mere occurrence or happening that justifies the application of the doctrine; it is the manner and attending circumstances that determine its application.No general...