Wilson v. Sereno

• Decision Date: 02 December 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 11 Ariz.App. 35,461 P.2d 514
• Parties: Linda Ruth WILSON and Eddie L. Wilson, her husband, Appellants, v. Ralph W. SERENO and Alice Sereno, husband and wife, Appellees. 611.
• Court: Arizona Court of Appeals

Page 514

461 P.2d 514

11 Ariz.App. 35

Linda Ruth WILSON and Eddie L. Wilson, her husband, Appellants, v.Ralph W. SERENO and Alice Sereno, husband and wife, Appellees.

No. 2 CA-CIV 611.

Court of Appeals of Arizona, Division 2.

Dec. 2, 1969.

Rehearing Denied Jan. 15, 1970.

Claborne & Severyn, by John L. Claborne, Tucson, for appellants.

Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for appellees.

KRUCKER, Chief Judge.

Plaintiffs-appellees, Ralph W. and Alice Sereno, sued defendants, Linda Ruth and Eddie L. Wilson, to recover damages for injuries sustained as the result of Mrs. Wilson's negligent operation of an automobile in Tucson in January, 1966.The case was tried to a jury which returned a verdict for plaintiffs, and judgment was entered awarding plaintiffs $30,000, plus costs.Defendants' motion for a new trial was denied, and they appeal from the judgment and denial of a new trial.

Construing the facts in a light most favorable to sustaining the judgment, they are as follows.Ralph Sereno was traveling south on Country Club Road in a 1948 Chevrolet pickup truck at about 11:00 a.m. when he reached the Benson Highway intersection in Pima County.He proceeded across the highway toward the divider and made a 'Hollywood stop,' i.e., slowed down almost to a stop, shifted gears, and proceeded ahead.He was struck broadside by a car driven by defendantLinda Wilson.He sustained head injuries, a smashed right leg, broken ribs, an injured pelvis, and injury to his back, neck and shoulders.His ability to continue his employment as a construction worker was impaired.

Mrs. Wilson, and the only eye-witness, Mr. Ike Hays Parten, a motorist driving several yards behind Mrs. Wilson testified that Mrs. Wilson was heading east at about 50 miles per hour.Plaintiff appeared to stop at the divider before a proceeding south when suddenly he shot out in front of her car, forcing Mrs. Wilson to brake and swerve to the right.Nevertheless, she hit the Sereno truck broadside.

Defendants' appeal makes the following allegations of error:

(1)The trial court erred in giving the 'Last Clear Chance' instruction.

(2)The trial court erred in refusing to give the 'Sudden Emergency' instruction.

Defendants maintain that the evidence at trial did not support a last clear chance instruction, and therefore its use was reversible error.In particular, they claim there was a complete lack of evidence as to two of the required elements of the doctrine: (1) that defendant appreciated plaintiff was unaware of the perilous situation, and (2) that defendant had a clear opportunity to avoid the accident.

The last clear chance doctrine is designed to determine whether negligence of plaintiff or defendant was proximate cause of the accident.Sheehy v. Murphy, 93 Ariz. 297, 380 P.2d 152(1963).Conceptually, it is a defense to defendants' allegation of the contributory negligence of plaintiff.Alires v. Southern Pacific Company, 93 Ariz. 97, 378 P.2d 913(1963);Comment, 4 Ariz.L.Rev. 72(1962).

We do not believe that there was sufficient evidence to warrant giving the instruction in this case.Plaintiff proceeded across the highway to the median and appeared to both defendant and the eyewitness to slow down and nearly stop.Plaintiff testified that nothing was wrong with his truck, but that he fully intended to, and in fact did, proceed across the highway.It was not until plaintiff was immediately in front of defendant that any peril existed, and then it was too late for defendant to do more than she did, which was to apply her brakes and swerve.At no time did defendant have any last clear chance to avoid the accident.

The instruction not being supported by the record, reversible error was committed.Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120(1965);Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975(1931).

There are two basic contentions advanced by defendants in regard to the sudden emergency instruction.First, they maintain that such an instruction was supported by the evidence.Second, they maintain that the trial court erred in requiring them to accept a last sentence amendment to their proposed instruction because their instruction was complete under Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267(1962).

We consider the merits of defendants' allegations since the question may arise on retrial.

We believe the Arizona, and majority, rule is that if the evidence presents the elements of the requested instruction, it will be allowed regardless of whether contradictory facts are also presented.Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30(1939); Annot., 80 A.L.R.2d 5.In the instant case, the trial court believed sufficient evidence was presented to warrant a sudden emergency instruction and we agree.Both defendantLinda Wilson and the eyewitness testified she was approaching the intersection and the truck appeared to be stopped when it suddenly lurched forward.Defendant testified she had slowed down upon seeing the truck but believed he would not proceed across her path.

The major contention of defendants is that while the trial judge agreed the facts supported the giving of an emergency instruction, he unjustifiably refused defendants' version.In particular, they...