Steed v. Cuevas

• Decision Date: 16 September 1975
• Docket Number: CA-CIV,No. 1,1
• Citation: Steed v. Cuevas, 540 P.2d 166, 24 Ariz.App. 547 (Ariz. App. 1975)
• Parties: Chester STEED and Vola Steed, husband and wife, Appellants, v. Jose CUEVAS, Appellee. 2393.
• Court: Arizona Court of Appeals

Page 166

540 P.2d 166

24 Ariz.App. 547

Chester STEED and Vola Steed, husband and wife, Appellants, v.Jose CUEVAS, Appellee.

No. 1 CA-CIV 2393.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 16, 1975.

[24 Ariz.App. 548] Rolle Jones Benton & Cole, by F. Keith Benton, Yuma, for appellants.

Pain & Julian, by Theodore A. Julian, Phoenix, for appellee.

OPINION

OGG, Presiding Judge.

This is an automobile negligence case in which the appellants-plaintiffsChester Steed and Vola Steed, husband and wife, seek to reverse the jury verdict rendered against them and in favor of the appellee-defendantJose Cuevas.The plaintiffs claim that the trial court erred in the instructions to the jury and by admitting the accident report into evidence.

The accident occurred as plaintiff was starting to make a left turn off U.S. Highway 80 near Yuma, Arizona, when the left front portion of defendant's vehicle struck the right rear portion of the plaintiffs' vehicle.The testimony as to the cause of the accident is in dispute.The plaintiff testified that she had made the proper signals for a left turn; the defendant testified that prior to the accident he saw no brake lights or signals indicating a left turn.

A witness who was following the two cars prior to the accident testified that the plaintiff suddenly slowed down and that the witness experienced difficulty in avoiding the accident.The witness also testified that he could see the brake lights of plaintiffs' vehicle and that they were on for 100 feet immediately prior to the accident.Portions of his testimony were conflicting and both parties used selected portions of the testimony in argument to bolster their theory of the accident.A fair appraisal of all the evidence leads us to the conclusion that this case presents a classic jury question for the determination of fault under conflicting claims of negligence and contributory negligence.We believe that there was sufficient evidence to justify the verdict of the jury.

Four questions are presented to us in this appeal and we will discuss each in the order presented to us in the briefs.

1.DID THE TRIAL COURT ERR IN REFUSING TO GIVE PLAINTIFFS' REQUESTED INSTRUCTIONNUMBER3?

This instruction reads:

'You are instructed that the driver of an automobile has the right to use the highways of this state provided that in using them he uses reasonable care and caution for the safety of others.It is the operator's duty to keep his motor vehicle always under control so as to avoid a collision with others using the highway, and he has no right to assume the road is clear, but, under all circumstances and at all times must be vigilant and must anticipate and expect the presence of others legally using the highway.'

Plaintiff claims that she was entitled to this instruction since it was directed at the key question as to whether the defendant could have avoided the accident if he had been more observant.Plaintiff argues that a similar instruction has been approved in a long line of Arizona cases and that it was error for the trial court to refuse the instruction.SeeYoung Candy & Tobacco Company v. Montoya, 91 Ariz. 363, 372 P.2d 703(1962);Layne v. Hartung, 87 Ariz. 88, 348 P.2d 291(1960);Pearson and Dickerson v. Harrington, 60 Ariz. 354, 137 P.2d 381(1943);Brooks v. De La Cruz, 12 Ariz.App. 591, 473 P.2d 793(1970).The trial court refused the instruction on the grounds it was covered by the other instructions given in the case.The court with a few modifications gave the stock Maricopa County Jury Instructions(MARJI) on negligence.The pertinent instruction to this argument is MARJI Number 6 which was given by the court and which reads:

'Negligence is lack of ordinary care.It is a failure to exercise that degree of care with a reasonable, prudent, or careful person would have exercised under the same circumstances.Negligence may arise from doing an act which a reasonable, prudent, or careful person would not do under the same circumstances, or from failing to do an act which a reasonable, prudent or careful person would do under the same circumstances.'

The court also instructed on those portions of § 28--730, ARS, concerning the statutory duties of the driver of a motor vehicle.The pertinent portion of such instruction reads:

'Section 28--73(730) provides: The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and traffic upon and the condition of the roadway.Should you find that any party to this suit violated any of the above laws, then that party would be negligent as a matter of law, and you should then consider the issue of whether that negligence was a proximate cause of the plaintiff's injuries.'

We find no error in the trial court's refusal to give plaintiffs' requested instruction number 3.The fact that an instruction was given in the case of Pearson & Dickerson v. Harrington, supra, and later approved does not mean it is now error to refuse such an instruction.This instruction was formulated before we had any attempt to get stock uniform instructions.The trial court here quite properly refused this instruction as covered in an obvious attempt to shorten and simplify the jury instructions.The trial court's efforts to avoid repetitive instructions is to be commended.Orlando v. Northcutt, 103 Ariz. 298, 441 P.2d 58(1968);Reah v. Jupin, 68 Ariz. 335, 206 P.2d 558(1949).

We believe that the points of law on this issue of negligence were properly covered by the court.The fact that the plaintiffs' proposed instruction gave a more favored slant to plaintiffs' position does not create any grounds for reversible error in this case.

2.DID THE TRIAL COURT INCORRECTLY INSTRUCT THE JURY AS TO THE LAW RELEVANT TO THE ISSUE OF CONTRIBUTORY NEGLIGENCE?

At the trial the plaintiffs requested that paragraph 2--A of MARJI Number 14 be amended to read:

'If you find that the plaintiff was negligent, and that such negligence was the proximate cause of plaintiff's injuries, then your verdict may be but need not be for the defendant.'

This proposed instruction was rejected and the jury was instructed:

'. . . If you find that plaintiff was negligent and that such negligence was a proximate cause of plaintiff's injuries, then your verdict should be for the defendant.You may, however, decide that the plaintiff should recover damages from the defendant even if you find the plaintiff was negligent.The decision is one that you, the jury, must decide.If you determine each of these issues in favor of the plaintiff, then you must find for the plaintiff on the issue of liability.'

Plaintiffs allege that this contributory negligence instruction as given does not comply with the refinements of the case of Layton v. Rocha,90 Ariz. 369, 368 P.2d 444(1962) as set out in the cases of Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107(1970)andWinchester v. Palko, 18 Ariz.App. 534, 504 P.2d 65(1972).We believe that the instruction as given is in compliance with the Arizona law and specifically informs the jury that, even if they find the plaintiff was contributorily negligent, they may still--in their sole discretion--award damages to the plaintiffs.See§ 5, Article 18, Arizona Constitution.In the case of State v. Cress, 22 Ariz.App. 490, 528 P.2d 876(1974), this court has recently discussed the problem faced by Arizona trial judges when attempting to properly instruct in the field of contributory negligence.In our opinion there is no error in the contributory negligence instruction as given and no useful purpose would be served with any further in-depth discussion of this question.

3.DID THE TRIAL COURT ERR IN GIVING THE JURY AN INSTRUCTION ON S 28--754(A) AND (B) OF THE ARIZONA REVISED STATUTES?

The jury was instructed:

'No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Section 28--751 or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until the movement can be made with reasonable safety.No person shall so turn any vehicle without giving an appropriate signal in the manner provided by this Article in the event that any other traffic may be affected by the movement.A signal or intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided by this article to the driver of any vehicle immediately to the rear when there is opportunity to give the signal.'

The portions of the quoted instruction relating to the turning of a vehicle and the required turning signals are contained in § 28--754(a) and (b), ARS.The portion of the instruction relating to stopping or decreasing speed is contained in § 28--754(c), ARS.The plaintiffs made a timely objection to the giving of instructions containing the provisions of § 28--754(a) and (b) on the grounds that the turning of plaintiffs' vehicle or the contemplated turning of the vehicle had nothing to do with the accident and there was no showing that either section of this statute had been violated.The transcript shows that there was some evidence presented that the plaintiff slowed her vehicle as she started to make a left-hand turn and that the plaintiff gave no left-hand turn signal.Although there was conflicting evidence on this matter, the court properly instructed on this phase of the defendant's contributory negligence theory of the case.Stearman v. Miranda, 97 Ariz. 55, 396 P.2d 622(1964);Young Candy & Tobacco Company, supra.Plaintiff cites Stearman in support of her argument on this issue.In our opinion this case more directly supports the...