Winchester v. Palko

• Decision Date: 19 December 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 18 Ariz.App. 534,504 P.2d 65
• Parties: Esta M. WINCHESTER, Appellant, v. Albert N. PALKO, Appellee. 1756.
• Court: Arizona Court of Appeals

Page 65

504 P.2d 65

18 Ariz.App. 534

Esta M. WINCHESTER, Appellant, v. Albert N. PALKO, Appellee.

No. 1 CA-CIV 1756.

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

Dec. 19, 1972.

Rehearing Denied Jan. 22, 1973.

Review Denied Feb. 20, 1973.

Johnson, Tucker & Jessen, P.A. by Paul W. Holloway, Phoenix, for appellant.

Cohen, Gerst, Groseclose & Meissner by David A. Groseclose, and Edward L. Hohn, Phoenix, for appellee.

HAIRE, Chief Judge, Division 1.

On this appeal the defendant-appellant seeks reversal of the trial court's entry of judgment for the plaintiff for damages incurred by plaintiff as a result of a collision between plaintiff's motorcycle and defendant's automobile. Defendant contends that the judgment must be reversed because the trial court gave imminent peril and contributory negligence instructions which were allegedly improper and highly prejudicial.

The automobile-motorcycle accident which gave rise to this litigation occurred at the 'T' intersection of North Tatum Boulevard and Clearwater Hills Parkway in Phoenix, Arizona. Prior to the accident, both vehicles were proceeding south on Tatum Boulevard. The impact between the two vehicles took place when, as the plaintiff attempted to pass the defendant on the right, the defendant made a righthand turn into Clearwater Hills Parkway.

Concerning the actual operative facts of the accident, the stories of the plaintiff and the defendant differ substantially. The plaintiff testified that the two vehicles were southbound on Tatum Boulevard, traveling at about 40 miles per hour. Plaintiff further testified that when he was approximately 100 to 150 yards north of the intersection, the defendant turned on her Left-turn blinker and started to slow down. He stated that the defendant continued slowing and he pulled abreast of her on the light side of her vehicle. At this time, he suddenly felt that something was not quite right and then next observed defendant's automobile turning into him, and the collision followed.

To the contrary, the defendant testified that when she was approximately 150 feet north of the intersection she turned on her Right-turn signal and started to slow down. She slowed at a constant rate of speed and checked her rear-view mirror and saw nothing and commenced her right turn, traveling at this time at the speed of approximately 12 to 15 miles per hour. The accident then happened when plaintiff struck her right front fender. Additional detail as to the evidentiary facts will be stated in discussing the arguments pertinent to the questions raised on appeal.

The first question raised by defendant is whether the trial court committed reversible error in giving an imminent peril instruction. ¹ Defendant's contention in this regard is twofold. First, he contends that the evidence was insufficient to support the giving of an imminent peril instruction. Second, he contends that the form of the imminent peril instruction as given was a defective and imcomplete statement of the law.

Considering first the sufficiency of the evidence, defendant cites Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964), for the principle that before the giving of an imminent peril instruction is justified, the evidence must show that after the peril arises, there is time for the allegedly negligent person to react to that peril and make a choice from two or more courses of action available to avoid the peril involved. See also Stump v. Fitzgerald, 14 Ariz.App. 527, 484 P.2d 1056 (1971).

The imminent peril instruction was requested by plaintiff under the theory that the jury might find the instruction applicable to his conduct insofar as concerns the question of his alleged contributory negligence. Initially we note that this type of instruction is not exclusively applicable to a defendant's conduct. If supported by the evidence it may also be applicable to the plaintiff's conduct when contributory negligence on plaintiff's part has been alleged, as in this case. Stump v. Fitzgerald, Supra. Viewing the evidence most strongly in plaintiff's favor, as we must do in considering the propriety of the giving or the refusal to give an instruction requested by plaintiff, Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30 (1939); Towers v. Johnson, 11 Ariz.App. 455, 465 P.2d 592 (1970), we are of the opinion that the evidence does show alternative courses of conduct open to plaintiff and an opportunity to make a choice between those alternatives subsequent to the time the sudden emergency or peril arose.

Here the sudden peril was plaintiff's realization that 'something was not quite right' and the observation that defendant was turning her automobile into him. The evidence and logic support the proposition that, time permitting, alternative courses of evasive action were available to plaintiff at this time--he could have applied his brakes, he could have applied his brakes and turned to the right, or he could have merely turned to the right without applying his brakes. However, defendant contends that the evidence shows that at the time plaintiff realized his peril, there was no time for plaintiff to select between these alternative courses, and that therefore the giving of the imminent peril instruction was improper. Defendant's contention in this regard is based upon the testimony of an accident reconstruction expert who testified that during the time lapse required for defendant's automobile to travel the area between it and plaintiff's motorcycle, there would not have been sufficient time for plaintiff to have reacted so as to apply his brakes or otherwise. This evidence strongly supports defendant's contention that the imminent peril instruction should not have been given. However, on cross-examination of plaintiff, defense counsel elicited testimony from plaintiff that he 'had a few seconds there to try to mull over any evasive action'. When this testimony is coupled with the expert witness's testimony that the average reaction time for braking is three-quarters of a second, and for turning, one-third of a second, we find some support, although obviously weak, for the giving of the instruction. Cf. Worthington v. Funk, 7 Ariz.App. 595, 442 P.2d 153 (1968); Serrano v. Kenneth A. Ethridge Contracting Co., 2 Ariz.App. 473, 409 P.2d 757 (1966).

Defendant additionally contends that the imminent peril instruction as given was defective in form and content, citing Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962), for the proposition that the following paragraph should have been added to the instruction:

'If a motor vehicle driver himself created the sudden emergency or brought about the perilous situation through his own negligence, he cannot avoid liability for an injury merely on the ground that his acts were done in the stress of a sudden emergency. He cannot shield himself behind an emergency created by his own negligence.'

Undoubtedly defendant's contention is a correct statement of the law. However, we note that the defendant's objections to the instruction in the trial court were limited to the issues of whether the instruction was warranted by the evidence, and whether the instruction was unduly emphasized by the order in which it was given. No objection was made that the instruction was an...