Western Truck Lines, Ltd., a Corp. v. Berry

• Decision Date: 02 May 1938
• Docket Number: Civil 3944
• Parties: WESTERN TRUCK LINES, LTD., a Corporation, and BILL MOREY, Also Sometimes Known as and Called D. A. MOREY, Appellants, v. VIVIAN BERRY, as Administratrix of the Estate of W. S. BERRY, Deceased, Appellee
• Court: Arizona Supreme Court

78 P.2d 997

52 Ariz. 38

WESTERN TRUCK LINES, LTD., a Corporation, and BILL MOREY, Also Sometimes Known as and Called D. A. MOREY, Appellants, v. VIVIAN BERRY, as Administratrix of the Estate of W. S. BERRY, Deceased, Appellee

Civil No. 3944

Supreme Court of Arizona

May 2, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr Henderson Stockton, Mr. Emmett R. Feighner and Mr. Eli Gorodezky, for Appellants.

Mr Albert W. Gurtler and Messrs. Laney & Laney, for Appellee.

OPINION

ROSS, J.

W.S Berry was killed in a collision between his automobile and a truck of the Western Truck Lines driven by Bill Morey, and this action was brought by Vivian Berry as his personal representative to recover damages to his estate on account of such death. The Western Truck Lines and Morey were made defendants. From a judgment and an order overruling a motion for new trial, defendants have appealed.

As is usual in such cases, there is a sharp conflict as to how the accident occurred and whose was the fault. We state the controlling facts before taking up the assignments of error.

The Gilbert highway runs east and west and the Mesa-Chandler highway runs north and south and intersect about 3 miles north of Chandler. The latter is a through highway and approaches to it are posted with "Stop" signs. The fatal accident occurred at the above intersection February 6, 1937, at about 7:30 P.M. The deceased was driving with his wife and their two small children in a Whippet automobile, traveling easterly on the Gilbert highway. The truck was traveling southerly along the Mesa-Chandler highway. As the Whippet was proceeding across the intersection, intending to make a left-hand turn onto the Mesa-Chandler highway, or after such turn was completed plaintiff insists, it and the truck collided, the points of contact being the left forefront of the Whippet and the right forefront of the truck. The force of the impact threw Berry out of his car onto the pavement and killed him. The Whippet was turned around and left near the south line of the Gilbert highway -- in the intersection, as we gather from the testimony, and facing south. The truck from the point of collision passed across the Gilbert highway and stopped in a borrow pit about 40 feet from the southeast corner of the intersection, facing in a southeasterly direction. An automobile going north on the Mesa-Chandler highway, just at the time, was rapidly approaching the intersection, and the driver of the truck (Morey) testified:

"Well, I saw there was going to be a wreck there and I looked up the road to see where this car was coming that was coming north, where it would be at the time I got into the intersection, and I didn't know which of the three of us was going to be in it; and what I was loaded with I knew it would be very dangerous to have any concussion or wreck with that load, so I saw the Gilbert road and I swung to my left down the Gilbert road to clear everything."

As shown by Morey and other witnesses, the truck was loaded with dynamite.

It was the contention of the plaintiff that Morey, the driver, was traveling at the rate of 50 miles an hour and became frightened because of the dangerous character of his load and turned over onto the left side of the highway in the pathway of the Whippet and thereby caused the accident.

The defendants contend that Berry drove into the main thoroughfare without stopping or giving any signal whatever of his intentions and that it was impossible to stop the truck, after the driver discovered Berry's movements, so as to avoid the accident.

The issue of negligence the jury decided in favor of plaintiff. It only remains to be seen if the case was otherwise tried in accordance with law.

The respects in which the defendants contend they were not given a fair trial are several in number, and we will endeavor to take each up and determine if the defendants are right in their contentions.

There are several points rather strenuously insisted upon as serious error. One is the introduction into the case of evidence of the character of the load on the truck at the time of the accident. Defendants insist that what the truck was loaded with was entirely immaterial and that proof that it was loaded with dynamite would serve only to prejudice the jury. It is said that an allegation in the complaint to the effect that the truck was loaded with dynamite was, on defendants' motion, stricken by the court and that by reason thereof proof of the character of the load, as that it was dynamite, should have been excluded. They say it was error to permit counsel in his opening statement for plaintiff to tell the jury the truck was loaded with dynamite, as also to introduce evidence to that effect.

We think the defendants would be right in their contention if it appeared that the character of the load had nothing to do with the accident, or that it did not influence the conduct of the truck driver. However, Morey, one of the defendants and the driver of the truck, states in his testimony that he drove the truck, when he saw the Gilbert highway, easterly on such highway and across the pathway of traffic in the direction of Mesa, and that he did this because he saw a car coming from the south and, having a load of dynamite, he took that direction to avoid a collision with the car going north and an explosion of the dynamite. In view of this statement of the defendant Morey, we think that the character of the load he was carrying became highly important and material. It tended to explain why Morey changed his course from south to east. It was a part of his narration of the incidents or happenings and his connection therewith. He said, in effect, it was because his load was dynamite that he swung to the lift to get out of the path of the oncoming car from the south and thereby avoid being blown to pieces by exploding dynamite. So long as it did not appear that the dynamite had anything to do with the accident, reference to the character of the load was incompetent and improper. But, when defendant Morey explained that its presence was what caused him to switch from the right to the left side of the highway, the reference in the opening statement to the truck being loaded the dynamite, and evidence by others that it was so loaded, if error, was cured.

While defendant Morey was a witness in behalf of the defense, he was asked by plaintiff's counsel this question: "As a matter of fact, aren't you incarcerated in jail now doing time?" An objection to the question was sustained and the jury was instructed to disregard it. Counsel for defendants "by reason of that question" asked that a mistrial be ordered. The ruling denying such request is assigned as error. Under the ruling it does not appear whether Morey was or was not in jail at the time, but defendants insist that the asking of the question was most harmful in itself, in that it left with the jury an inference that the witness was in jail serving time on account of his conduct on the occasion of Berry's accidental death. It is no doubt true that the jury because of such question wondered if Morey was in jail and if so why, but, since the jury was told by the court to disregard the question, is it not reasonable to assume that it judged the witness' testimony in the light of its reasonableness and the candor of its telling, rather than upon something it was told to disregard? In McCann v. State, 20 Ariz. 489, 496, 182 P. 96, 99, where a similar question was involved, we said, quoting from Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708:

"'The trial of a case is not to be suspended, the jury discharged, a new one summoned, and the evidence retaken, when an error in the admission of testimony can be corrected by its withdrawal with proper instructions from the court to disregard it.'"

Defendants complain because the court denied their request to have the jury inspect the Whippet automobile at Chandler where it was in a garage, there being evidence it was in the same condition as on the day of the accident. The evidence as to whether the Whippet had a hand-operated windshield wiper or not was in dispute. Plaintiff testified it did have and that because it was misting rain deceased used it to wipe the windshield just before the accident. There was evidence by a witness who inspected it the day of the trial that the Whippet had no hand windshield wiper but that it had "a part of an automatic windshield wiper." Defendants say that an inspection of the car by the jury would have demonstrated who was telling the truth and disproved plaintiff's testimony. The materiality of the testimony as to the windshield, unless supplemented by other evidence showing that the misting rain prevented the driver from seeing approaching automobiles from his right and left, is very questionable. If the driver could see the lights of automobiles traveling on the Mesa-Chandler highway -- and there was no evidence that he could not -- without a wiper being used on his...