Trickel v. Rainbo Baking Co. of Phoenix

• Decision Date: 06 April 1966
• Docket Number: No. 7212,7212
• Citation: 412 P.2d 852,100 Ariz. 222
• Parties: Viola TRICKEL, Jim A. Trickel, a minor, by Viola Trickel, next friend, Appellants, v. RAINBO BAKING COMPANY OF PHOENIX, a corporation, and Kenneth Prewitt, Appellees.
• Court: Arizona Supreme Court

Page 852

412 P.2d 852

100 Ariz. 222

Viola TRICKEL, Jim A. Trickel, a minor, by Viola Trickel, next friend, Appellants, v. RAINBO BAKING COMPANY OF PHOENIX, a corporation, and Kenneth Prewitt, Appellees.

No. 7212.

Supreme Court of Arizona, In Banc.

April 6, 1966.

Ira J. Bergman, Phoenix, for appellants.

Snell & Wilmer, by Roger W. Perry and Donald R. Kunz, Phoenix, for appellee.

UDALL, Justice.

This is an appeal from an action in negligence, tried to a jury, wherein damages were sought for personal injuries sustained by a minor when struck by an automobile. Nine members of the jury returned a verdict for defendants, appellees herein, and judgment was rendered on the verdict by the trial court.

Plaintiffs, appellants herein, moved for a new trial which was denied, urging error in the giving and refusal to give certain instructions, together with error in the admission of a written statement purportedly impeaching in nature. While the record on appeal was being prepared, appellants moved to strike appellees' supplemental designation of record on appeal pursuant to Rule 75(e), Arizona Rules of Civil Procedure, 16 A.R.S. Appellants also assign as error the trial court's denial of this motion.

Jim A. Trickel, a minor of the age of four years, eleven months was struck on July 16, 1958 by a westbound station wagon driven by appellee, Kenneth Prewitt, within a school crossing defined by yellow lines on Roosevelt Street, a thoroughfare running cast and west in the city of Phoenix. Appellee Prewitt, an employee of appellee, Rainbo Baking Company, of Phoenix, was returning to the company's business premises after making a special delivery to a customer when the accident occurred. The usual speed limit as posted in the area was 35 M.P.H., and there was testimony that Prewitt was not exceeding the posted speed limit prior to the accident.

During cross-examination of appellant's witness, John Luther, the attorney for appellees produced a written statement, which had been reduced to writing by someone other than the witness but admittedly bearing the witness' signature, for purpose of impeachment of the witness' testimony on direct examination. The writing was admitted in evidence over appellants' objection for lack of foundation, thus becoming appellants' first question presented for review.

It is generally necessary, before a witness may be impeached by extrinsic evidence of prior inconsistent statements, that proper foundation must be laid on cross-examination. In certain situations, however, this procedure is not necessary. Where a witness denied making the statement or is evasive, it is not necessary to ask the customary warning question: 'He cannot, by answering that he has no recollection of having made the former statements imputed to him, defeat the right of the impeaching party to prove that he did make such statements.' Tamborino v. Territory, 7 Ariz. 194, 198, 62 P. 693, affirmed 7 Ariz. 246, 64 P. 492. See also, State v. Polan, 80 Ariz. 129, 293 P.2d 931. See generally, McCormick, Evidence, § 37. Udall, Arizona Law of Evidence, § 63.

The record clearly shows that witness Luther had no recollection whatsoever of having made the statement or having signed it as indicated by the following excerpt from his testimony:

'Q Do you remember on July 28th, 1958, that a man representing the bakery came to see you at your home?

'A No, I am afraid I don't.

'Q And do you remember at that time signing a written statement which related your recollection of the events around the accident and the accident itself?

'A Gee, I don't remember that at all.

'Q Do you remember signing this?

'A No, I am afraid I really don't.'

The foregoing testimony considered in view of the law in this state shows that the written statement was admissible without the usual warning questions being expounded. The witness merely denied making the statement and thus the usual rule as to impeachment by prior inconsistent applications has no application.

Appellants further complain, as ancillary to the foregoing argument, that because the written statement showed the witness had no recollection as to whether the child was walking or running at the time he was struck it was inadmissible for impeachment purposes. This argument is wide of the mark as the witness testified on direct examination that he observed the entire sequence of events of the accident, while the prior written statement indicated that after the child entered the street the witness looked away and did not observe the child until after he was actually struck by the station wagon. The prior written statement was inconsistent with the testimony of the witness on the stand and the statement showed a lack of knowledge or lack of means of such knowledge whereas the witness testified that he witnessed the entire event. These statements were sufficiently inconsistent and materially related to the subject matter to justify the showing of the prior statement so that the jury could determine the credibility of the witness.

Appellants state that even assuming the written statement should have been admitted, it was error to admit the entire written statement as only a portion of the statement was variant with the witness' present testimony. While it would have been proper to admit merely the variant portion and exclude parts that were nonvariant, it was not prejudicial as the nonvariant portions were merely consistent with the witness' testimony which was already before the jury. Moreover, if appellants desired that only a portion of the statement be admitted, they should have so moved, which was not done and are thereby in no position to assert error as to this matter. We find no merit to appellants' first assignment of error.

Appellants next contend the trial court erred in failing to instruct the jury that appellees were guilty of 'negligence per se' since at the time of the accident, appellants' motor vehicle was being operated at a speed in excess of 15 miles per hour, and in instucting the jury that the school crossing was in effect only while school was in session as announced by signs to that effect. It was established at the trial that a school crossing existed at the place the accident occurred as indicated by yellow lines upon the pavement and that the child was attempting to use this crosswalk when struck by the vehicle. The accident, however, occurred during the school summer vacation, when the portable school signs were not on the street. Thus, appellants' requested instruction would have charged appellees with negligence as a matter of law if the driver was exceeding 15 miles per hour at the time of the accident regardless of the hour, day, or season of year. This is not the law as established by statutes pertaining to this subject.

A.R.S. § 28--701 is a general speed law setting forth lawful speeds not only for school crossings, but for business districts, residential districts, and highways. This statute fixes a speed limit of 15 miles per hour when approaching school crossings. This general statute is amplified by specific provisions in A.R.S. § 28--797 which provides, in part:

' § 28--797. School crossings

'A. In front of each school building, or school grounds abutting thereon, the commission by and with the advice of the school board or superintendent of schools, is empowered to mark or cause to be marked by the department, or local authorities, a single cross walk where children shall be required to cross the highway.

'D. When such crossings are established school authorities shall place within the highway the portable signs indicating that school is in session * * *. School authorities shall maintain these signs when school is in session and shall cause them to be removed immediately thereafter.

'E. No vehicle shall proceed at a speed to exceed fifteen miles per hour when approaching the cross walk and while between the portable signs placed on the highway * * *.

'F. When the clause 'school in session' is used in this section, either referring to the period of time or to signs, it means during school hours or while children are going to or leaving school during opening or closing hours. * * *'

It is a fundamental rule that statutes are to be construed together and where different statutes bearing upon the same subject matter exist they must be construed so as to give effect to all. Arizona Corp. Comm'n v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427; General Petroleum Corp. of Calif. v. Smith, 62 Ariz. 239, 157 P.2d 356, 158 A.L.R. 364. Likewise, it is well settled that where a special provision of a statute deals with the same subject as a general statute, the special provision prevails. Moeur v. Chiricahua Ranches Co., 48 Ariz. 226, 61 P.2d 163; State v. Lumberman's Indemnity Exchange, 24 Ariz. 306, 209 P. 294.

In light of the foregoing statute and statutory rules of construction, it is evident the trial court did not err in refusing to give the negligence per se instruction. The general statute, A.R.S. § 28--701, insofar as it pertains to school crossings is clearly governed by A.R.S. § 28--797 which specifically, and with particularity, speels out the circumstances under which school crossings may be established and when they are operative. Once a school crossing has been established it is operative while school is in session as defined in the statute, and made known to the public by the placement of portable signs as specified by A.R.S. § 28--797. This is not a question of an ambiguous statute requiring judicial construction, but merely a matter of applying a statute that clearly demonstrates the intention of the legislature.

Appellants assert, as an adjunct to the foregoing argument, an additional error in the giving of one of appellees' requested instructions to the effect that pursuant to the Manual on Uniform Traffic Control Devices, a crosswalk is not established at a school crossing except when the portable signs provided by A.R.S. §...