Stump v. Fitzgerald

• Decision Date: 18 May 1971
• Docket Number: No. 1,CA-CIV,1
• Parties: Fred N. STUMP, Appellant, v. Vincent L. FITZGERALD, Appellee. 1357.
• Court: Arizona Court of Appeals

Page 1056

484 P.2d 1056

14 Ariz.App. 527

Fred N. STUMP, Appellant, v. Vincent L. FITZGERALD, Appellee.

No. 1 CA-CIV 1357.

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

May 18, 1971.

Rehearing Denied June 15, 1971.

Maupin, Wilson & Maud, by Oliver H. Maud, Phoenix, for appellant.

Langerman, Begam & Lewis, by Jack Levine, Phoenix, for appellee.

STEVENS, Presiding Judge.

Vincent L. Fitzgerald, a single man, was the plaintiff in an action filed in the Superior Court seeking damages for the personal injuries which he sustained in a motor vehicle accident. The defendants were the appellant Fred N. Stump, a single man, and David P. Garcia. Mr. Oliver H. Maud represented Stump in the trial and represents him on the appeal. Mr. Arthur M. Johnson represented Garcia in the trial. A verdict was rendered in favor of Fitzgerald and against Stump. A judgment was entered thereon. A verdict was rendered in favor of Garcia in relation to the Fitzgerald claim against Garcia and no appeal has been taken from that verdict and the judgment entered pursuant thereto. On appeal, Stump urges three questions for review, stating them as follows:

1. 'Should the court have granted appellee's requested instruction No. 18 in the form presented on intervening cause?'

2. 'Should the court have given appellee's request for an instruction on sudden peril, which instruction was merely read by the court from California Jury Instructions, No. 137?'

3. 'Should the court have granted appellant Stump's motion for directed verdict at the close of the cases for plaintiff and this defendant?'

At the time of the oral argument before this Court, Stump expressly abandoned the first question.

This case is before us on a short record. The reporter's transcript is limited to the testimony of four witnesses, these being the investigating highway patrolman, Garcia, Fitzgerald, and the driver of the car in which Fitzgerald was a passenger, as well as the exceptions to certain of the instructions. This Court does not have a reporter's transcript of the instructions which were delivered by the trial court to the jury for its consideration in connection with this case.

As to the third question we must rely on the trial court's minutes. The minutes disclose that Stump made a motion for a directed verdict at the close of the plaintiff's case. The motion was denied. Immediately following the denial of the motion for directed verdict, we find the following recited in the trial court's minutes:

'The record may show that Mr. Johnson concedes Mr. Maud the right to proceed first. In view of the age of Defendant Stump, the following hearing is held to see if he is competent to testify in the case.

'Fred N. Stump is sworn, and the Court interrogates him, in the absence of a jury.

'Counsel stipulate that Defendant Stump, if he were to testify, has no recollection of the accident; and the Court finds that defendant Stump is not competent to testify.'

Thereafter the court reconvened in the presence of the jury and the minutes recite:

'Mr. Maud, on behalf of Defendant Stump, informs the jury of the stipulation as to Mr. Stump's not recollecting the accident.'

Thereafter in connection with the presentation of the case on behalf of Stump, portions of the Garcia deposition were read to the jury and certain exhibits were introduced into evidence.

After all of the evidence had been presented and after all the parties had rested, the record is silent as to the renewal of the Stump motion for a directed verdict. The motion for a directed verdict was thereby waived. Lillywhite v. Coleman, 46 Ariz. 523, 52 P.2d 1157 (1935).

After the judgments had been entered, Stump filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. A motion for judgment notwithstanding the verdict would not lie under these circumstances. Rule 50(b), Rules of Civil Procedure, 16 A.R.S. We hold that Stump may not raise question three on the appeal. This holding is not too vital for the reason that our review of the record convinces us as to the correctness of the ruling of the trial court.

We come then to the second question. We quote from a portion of the reporter's transcript which was furnished to us.

'THE COURT: Gentlemen, the Court then read, at the request of some of you gentlemen--

MR. LEVINE: The plaintiff.

THE COURT: The plaintiff, No. 137, from California Jury Instructions, One, at Page 330, which is the instruction on sudden peril.

MR. MAUD: Defendant Stump objects to the giving of the instruction on sudden peril, for the reason that there is no evidence, whatsoever, that the only person to whom the Stump vehicle could conceivably have presented any peril in this case was the driver of the vehicle, the Fitzgerald--Heather Fereira, and that the evidence is very clear in that reasonable minds could not differ as to the conclusions to be drawn from the facts, but that there was no sudden peril facing the Heather Fereira vehicle.

MR. JOHNSON: The Court was eminently fair in giving that instruction.

MR. MAUD: I would likewise use that argument as to the defendant Garcia.'

The Heather Fereira mentioned in the above quotation was the driver of the car which Fitzgerald owned and in which he was riding as a passenger. She will hereafter be referred to as the plaintiff's driver. The main thrust of the argument on appeal relates to the above objection. It was also urged on oral argument that the sudden peril instruction should be discarded in the same manner that our Supreme Court has discarded the unavoidable accident instruction. In relation to the unavoidable accident instruction one of the illustrative cases is the case of Trickel v. Rainbo Baking Company of Phoenix, 100 Ariz. 222, 412 P.2d 852 (1966). The sudden peril instruction has been approved in those circumstances wherein the giving of the instruction was appropriate. The following cases are illustrative: Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962); Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964); City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383 (1970); Serrano v. Kenneth A. Ethridge Contracting Company, 2 Ariz.App. 473, 409 P.2d 757 (1966); Fulton v. Johannsen, 3 Ariz.App. 562, 416 P.2d 983 (1966); and Cano v. Neill, 12 Ariz.App. 562, 473 P.2d 487 (1970). The California Jury Instruction in question can be found quoted in full in Fulton, 3 Ariz.App. at 564, 416 P.2d at 985. We hold that the sudden peril or sudden emergency instruction is well recognized in our law and may be given in appropriate circumstances as a proper supplement to the standard instruction defining negligence. We now turn to the evidence to ascertain whether the abovequoted objections by Stump were well taken.

The accident in question occurred after dark on U.S. Highway 60. This highway connects Sun City and Phoenix and the general direction thereof is northwest-southeast. The accident occurred near the Peoria underpass. We will refer to the Sun City side and to the Phoenix side of the underpass. In the area of the underpass the highway is a four-lane thoroughfare with two lanes allocated for each direction of traffic. As one approaches the underpass from Sun City the highway curves to the left and as one emerges from the Phoenix side of the underpass it curves to the right. The difference in elevation between the highway at ground level and the highway as it passes through the underpass was not established. The degree of the curve was not established. The photographs which were introduced in evidence indicate to this Court that these curves can be characterized as 'marked curves' to differentiate them from 'slight curves.' The speed limit was 45 miles per hour. The evidence indicates that neither of the defendants...