Tenney v. Enkeball

• Decision Date: 30 April 1945
• Docket Number: Civil 4673
• Citation: 62 Ariz. 416,158 P.2d 519
• Parties: W. D. TENNEY, Appellant, v. RALPH ENKEBALL, a Minor by Hannah Enkeball, Guardian Ad Litem, Appellee
• Court: Arizona Supreme Court

158 P.2d 519

62 Ariz. 416

W. D. TENNEY, Appellant, v. RALPH ENKEBALL, a Minor by Hannah Enkeball, Guardian Ad Litem, Appellee

Civil No. 4673

Supreme Court of Arizona

April 30, 1945

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge.

Judgment affirmed.

Messrs Fennemore, Craig, Allen & Bledsoe; Messrs. Patterson &amp McFate, for Appellant.

Messrs Morgan & Locklear, for Appellee.

Faulkner, Superior Judge. Stanford, C. J., concurs. Morgan, J., being disqualified, the Honorable J. W. Faulkner, Judge of the Superior Court of Mohave County, was called to sit in his stead. LaPrade, J., (dissenting.)

OPINION

Faulkner, Superior Judge.

This action was brought by the appellee, Ralph Enkeball, a minor of the age of twelve years, by his guardian ad litem, against the appellant, W. D. Tenney, and his brother, Boyd Tenney, to recover damages for injuries received on July 22, 1942, when a truck owned by appellant and used in the operation of a garbage route, ran over appellee. Such injuries consisted of a compound fracture of the femur, and severe lacerations and multiple contusions. Some twenty stitches were required to sew up the lacerations. The fracture slipped after the leg had been placed in a cast. When it was reset, it became necessary to make a long slit in the flesh and insert a metal splint and fasten the same with screws, in order to hold the bone in place. It also was necessary to give appellee a blood transfusion. Appellee suffered great pain and required treatments extending over a period of many months, and incurred surgical, hospital and other expenses in connection with the injury, amounting to $ 1260. At the trial, which occurred nearly a year after the accident, his surgeon testified that the injuries would not be permanent, but there still was atrophy of the muscles of the injured leg, and it was smaller than the other leg.

The case was tried before a jury which found in favor of Boyd Tenney, but rendered a verdict in favor of appellee and against appellant for $ 2850. This appeal is from the verdict and judgment, and from an order overruling appellant's motion for a new trial.

Appellant secured a certificate of convenience and necessity from the Arizona Corporation Commission authorizing him to operate a garbage route in Miller Valley, adjacent to the city of Prescott, and operated the same in person for some time prior to 1942, when he moved to Flagstaff, and left the business in charge of Boyd Tenney, with authority for the latter to employ the help necessary. Boyd Tenney had no interest either in the truck or in the garbage route, but merely acted as agent for appellant. About April 1942, Boyd hired Austin Hogue, an eighteen year old boy, to run the truck and operate the route. Later he hired appellee at a wage of $ 4 per week to work in his feed store, and permitted him at times to assist Hogue in collecting the garbage, charging part of his wages to appellant. The accident occurred on the fourth trip appellee made with Hogue. They were accompanied by Luther Hamilton, a boy about the age of appellee. The two boys carried the smaller containers to the truck, while Hogue handled the larger ones. The boys rode on the running boards or fenders between stops.

Hogue testified in substance that the last stop on the day of the accident was on Lincoln Avenue; that he drove from thence to and along Whipple Street and turned north on Ruth Street, and turned corners as he entered each of the streets; that he was driving about ten miles an hour when he turned into Ruth Street, but got back to about fifteen or twenty miles after he straightened up on Ruth Street at the time of the accident; that at the last stop on Lincoln Avenue both boys got on the running board of the truck, Enkeball on the right-hand side, and Hamilton on the left; that he "told them they should not be riding on the running boards as it was dangerous"; that he thought Enkeball was on the running board when he made that statement; that after he started the truck and came close to Whipple, he noticed that Enkeball was on the fender; that "he had moved over from the position of riding on the running board to the position of riding on the fender between this last stop and Whipple Street"; that he was on the fender when the turn was made into Whipple Street, and when the truck turned the corner into Ruth Street.

The following excerpts from the testimony are presented here, as a basis for the discussion of the assignments of error hereinafter mentioned.

Hogue testified as follows, in answer to questions by Mr. Head, attorney for Boyd Tenney:

"Q. Did you notice after you started down Ruth Street and after you straightened out toward the houses there north as to whether he was still on the fender? A. Yes, sir.

"Q. In what position was he as you recall from his observation? A. I did not notice him very close. It looked like he was leaning over.

"Q. That was after you got on Ruth Street? A. Yes.

"Q. As far as you noticed he was leaning over? A. As far as I could see. It might have been he caught his foot or whatever he had there and fell off, I couldn't see.

"Q. How would you think he would catch his foot? A. The tires of the wheels are not very far from the fender and he had his legs hanging down there.

"Q. He had his legs down where the wheels were? A. Well, down in front of the truck.

"Q. From your observation he was sitting with his feet hanging down over the wheel? A. Yes, sir.

"Q. You stated that you had told Ralph Enkeball and Luther Hamilton both to stay off the fenders of the truck over there on Lincoln Avenue, so you had every occasion to tell Ralph Enkeball before that time to watch his safety and stay away from dangerous parts of the car? A. Yes, sir.

"Q. Do you recall how many times you told him? A. Usually every time I started out I told him.

"Q. What did he do with reference to your orders in that regard? A. Well, he would not listen to me it seemed."

All the testimony offered on behalf of Boyd Tenney was adopted by appellant as his testimony in the case.

The evidence showed that appellee had done very little riding in automobiles. His family had owned a car at one time for about two weeks. He testified in part as follows:

". . . I kept riding on that fender off and on for a while, and then when we got to our last stop on Lincoln Avenue, why, I got on the fender and then I rode on the rest of the way down Lincoln and then up Whipple Street, and then he rounded the corner at Ruth and Whipple. . . . Yes, sir, he went right close to the edge and he just missed the fence and I got quite a bit dizzy there . . . and then he swerved back to get on the right-hand side of the road and I was pitched in front of the car, in front of the truck."

In describing the truck, appellee said:

"Well, it had a stake body in the back and was awfully wobbly and was not very good in the back, and the door was loose and would fly open sometimes, and the fender, the left fender it was, . . . yes, it was the left fender that had the crack in it up there. It had been welded, but the welding had broke. It was loose and wobbly and there was no bumper on the front. . . . Yes, sir, the windshield was broken."

Appellee further testified that he rode on the fenders the three previous trips; and that he did not want to ride on the running board because the door was broken and would fly open sometimes; and that it was handy to slide off the fender to run and get the garbage; and that he did not remember that Hogue had ever told him to keep off the fenders.

Appellant testified that the truck was a 1935 Chevrolet, and was in A-1 condition when he saw it last. He had not heard that the windshield was broken, and did not know that the fenders were loose. They were in good condition when he saw them. He admitted that he owned the truck and garbage route at the time of the accident.

The following testimony of appellee is quoted in appellant's brief:

"Q. When you were on the fender of the car out there you knew it was not safe to be there and you knew it was safer to be in the cab, didn't you? A. Yes, in a way.

"Q. You knew if you fell off of that fender it would be dangerous? A. Yes.

"Q. In fact, when you were sitting on the fender you could see the wheel turning under the fender, couldn't you? A. Yes, sir.

"Q. So when you got up on that fender you actually knew you were in danger of your life and you might be killed in getting up on that fender? A. No, sir, I didn't.

"Q. You did not think you would be killed? A. Well, not actually. If he had drove slowly I probably would not have.

"Q. You knew there was danger in any speed of riding on a fender if you fell off? A. Oh, yes.

"Q. When you got out there you knew that? A. Well, in a way, but in a way I did not."

Appellant adds this comment:

"The plaintiff admits by the above quoted testimony that he realized the danger of riding upon the fender of the truck and had a full appreciation of the hazard involved. . . . ."

Appellant made ten assignments of error. His first assignment is directed at an instruction which submits a hypothetical proposition based upon appellee's theory of the case, and directs that if the jury finds certain facts, "such failure constitutes negligence, and would be the proximate cause of the injury." Appellant complains that the instruction was defective, in that it failed to mention his defense of contributory negligence, and "That it attempted to outline the duties and responsibilities of the driver of the truck without relation to any corresponding duties and responsibilities on the part of the plaintiff-appellee."

We think the evidence justified the giving of this instruction. The court elsewhere in its instructions...