Southwestern Freight Lines, Ltd. v. Floyd

• Citation: 119 P.2d 120,58 Ariz. 249
• Decision Date: 24 November 1941
• Docket Number: Civil 4380 and 4381
• Parties: SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E. L. NORTHCUTT FREIGHT LINES, Appellants, v. ORA MAE FLOYD, by Her Guardian ad Litem, Virgil H. Floyd, Appellee; SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E. L. NORTHCUTT FREIGHT LINES, Appellants, v. NORMA SHAFER, by Her Guardian ad Litem, Berenice Bailey, Appellee
• Court: Supreme Court of Arizona

119 P.2d 120

58 Ariz. 249

SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E. L. NORTHCUTT FREIGHT LINES, Appellants, v. ORA MAE FLOYD, by Her Guardian ad Litem, Virgil H. Floyd, Appellee; SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E. L. NORTHCUTT FREIGHT LINES, Appellants, v. NORMA SHAFER, by Her Guardian ad Litem, Berenice Bailey, Appellee

Civil Nos. 4380 and 4381

Supreme Court of Arizona

November 24, 1941

APPEAL from judgments of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgments affirmed.

Messrs Struckmeyer & Flynn, for Appellants. Mr. Fred V. Moore and Mr. E. E. Selden, for Appellees.

OPINION

ROSS, J.

This is an appeal by the defendants, Southwestern Freight Lines Ltd., and E. L Northcutt, an individual, doing business as the E. L. Northcutt Freight Lines, from judgments in favor of plaintiffs, Ora Mae Floyd and Norma Shafer, minors, in actions to recover damages suffered by them in a collision between the bicycle on which they were riding and an automobile truck belonging to one of the defendants, which occurred February 28, 1940, at about 6:50 P. M. on the Phoenix-Wickenburg public highway about two miles north of Glendale. There were two actions below but, having arisen out of the same accident, they were consolidated for trial and are consolidated on appeal.

The complaints charge that the concurrent negligence of the defendants caused the injury to plaintiffs. The road where the accident happened is a paved highway, with four lanes separated by white lines. The two lanes on the east side are for northbound traffic and the two on the west side for southbound traffic. It is an open and clear piece of country road. The facts as alleged are as follows: Plaintiff Ora Mae Floyd, who at the time was 12 years of age, was riding as a guest upon the main frame of a bicycle operated by plaintiff Norma Shafer, who was 16 years of age, and traveling on the right-hand lane of the highway in a northerly direction. The defendant E. L. Northcutt was operating a motor truck in the same traffic lane and in the same direction and was attempting to or was about to pass the bicycle. It is alleged that defendant was following the bicycle directly behind and closer than was reasonably prudent, and thereby frightened the operator of the bicycle, causing her to swerve to the left and to collide with the side of a Dodge tractor truck, belonging to the defendant Southwestern Freight Lines, Ltd., then moving in the adjoining traffic lane and attempting to pass the Northcutt truck, to the great damage of the plaintiffs.

The acts of negligence charged against the Southwestern Freight Lines, Ltd., are: (1) That its Dodge tractor truck was traveling at 45 miles per hour, too great speed with due regard to the traffic on the highway and the width thereof; (2)...; (3)...; (4)...; (5) that the driver of its truck failed to sound his horn or give any audible warning of its approach; (6)...; and (7) that he was towing a semi-trailer and going at a speed in excess of 20 miles per hour, to wit, a speed of 45 miles per hour. The deleted acts of negligence were abandoned on the trial and plaintiffs undertook to prove only the following acts of negligence:

(1) On the part of E. L. Northcutt, that he was following plaintiffs too closely, considering the traffic, the condition of the highway and the speed at which they were traveling.

(2) On the part of the Southwestern Freight Lines, that its truck was exceeding the speed limit set for trucks of its character; also that it failed to give any audible warning of its intention to pass the Northcutt truck and the bicycle that plaintiffs were on.

At the close of plaintiff's case and at the close of the whole case the defendants made separate motions for directed verdicts on the ground that there was a total failure of proof of any negligence of the defendants. The court's denial thereof and its order denying a motion for a new trial on the same grounds are assigned as errors.

It will be necessary to state the evidence, since this specification raises its sufficiency to support the verdicts. On such a motion it is the rule to treat the evidence in the most favorable light to support the verdicts.

It appears that on February 28, 1940, Norma Shafer and Ora Mae Floyd were living with their respective parents in an auto camp on the east side of said highway, also known as Grand Avenue, and that on said day, at about 6:50 P.M., the former borrowed a boy's bicycle and invited Ora Mae to join her in a ride; that they followed a trail on the outside of the paved highway, and on the east side thereof, until they came upon the Northcutt truck parked on that side of the road necessitating their entering upon the paved highway; that they were going north, and had proceeded 75 to 100 feet, when the Northcutt truck started up and followed them; that they, and the truck directly behind them with its lights burning, were in the east traffic lane, the truck traveling 15 miles per hour and the bicycle six to seven miles per hour, three or four feet from the outer edge of the paved highway, and, when the truck was about 15 feet from them, Norma turned to the left, at the time or immediately before saying, "That truck is going to hit us," and ran into the Southwestern truck, at or near the cabin thereof, and they were thrown from the bicycle to the pavement.

The Southwestern truck was towing a semi-trailer and was also traveling northerly in traffic lane No. 2 on the east side of the highway, with its lights burning.

Plaintiffs' evidence is to the effect that this truck was traveling at a speed of 40 to 45 miles per hour and that it did not sound its horn or give any audible notice of its approach.

The Northcutt truck stopped almost immediately, and after the accident was some 15 feet back of where the plaintiffs lay on the pavement.

The Southwestern truck stopped some 30 feet from the point of contact with the bicycle.

The defendant Northcutt insists that the evidence fails to show him guilty of any negligence whatever. It is contended by him that he had his truck in complete control all the time; that he did not touch the bicycle but kept well behind it and that, if the bicyclist through fear turned suddenly into the oncoming truck in traffic lane No. 2 and was hurt, it was not his fault, but her own carelessness.

The statutory rule to be observed by traffic on the public highways of the state, section 66-109, Arizona Code 1939, reads:

"Giving way to overtaking vehicle -- Following too closely. -- The driver of a vehicle about to be overtaken and passed by another vehicle from the rear shall give way to the right in favor of the overtaking vehicle on suitable and audible signal being given by the driver of the overtaking vehicle, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle. The driver of a motor vehicle shall not follow another vehicle closer than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of the highway. The driver of a motor truck traveling outside of a business or resident district shall not follow another motor truck within one hundred (100) feet, but may overtake and pass another motor truck."

A reasonable and prudent distance between motor vehicles outside of a business or resident district is fixed by law as 100 feet, but the distance to be kept between motor vehicles and oth e r vehicles in all other places must not be closer than is "reasonable and prudent." This statute recognizes, we think, that there is danger of collision between motor vehicles traveling in the same direction upon the same highway and following each other too closely. However, whether in a given case the statute is violated depends upon several factors, such as the speed the vehicles are traveling, the traffic upon and the condition of the highway. Who is to determine from a consideration of these factors whether, when an accident occurs, it was the result of the driver of the automobile following "closer than is reasonable and prudent," or from some other cause? We think the situation created a condition requiring the jury to say whether the Northcutt truck was following the bicycle closer than was "reasonable and prudent," and that it is not a question of law that may be decided by the court.

That the operator of the bicycle, when she saw or heard the Northcutt truck 15 or 20 feet behind her, should be reasonably expected to continue on her course, unexcited, and take the chance she would not be run down, is hardly in accordance with human experience. One would rather expect her to become panicky and instantly seek some way of escape. That she failed to adopt a safe or the safest course, or to give statutory signals under section 66-111, does not relieve the defendant. It has long been settled that a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages. Greenberg v. Conrad, 220 Ill.App. 508. Nor do we think Norma Shafer's actions in the emergency should be judged by the fact that she was in no danger from the Northcutt truck, which it appears the driver had under complete control and stopped almost immediately when the bicycle was turned to the left. That she, in fact, was in no danger from the Northcutt truck is not the proper criterion by which to judge her actions. Upon such appearance of danger, she had a right to act as an ordinarily prudent and reasonable person in like circumstances would have acted. 45 C.J. 965, sec. 518.

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