Womack v. Preach

• Decision Date: 30 October 1945
• Docket Number: Civil 4718
• Citation: 63 Ariz. 390,163 P.2d 280
• Parties: J. R. WOMACK and CLIFFORD GIDEON, Appellants, v. EDWARD J. PREACH, Appellee
• Court: Arizona Supreme Court

163 P.2d 280

63 Ariz. 390

J. R. WOMACK and CLIFFORD GIDEON, Appellants, v. EDWARD J. PREACH, Appellee

Civil No. 4718

Supreme Court of Arizona

October 30, 1945

See Supplemental Opinion, 64 Ariz. , 165 P.2d 657.

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.

Judgment affirmed.

Messrs Stockton & Karam, for Appellants.

Mr Kenneth S. Scoville and Mr. Lynn M. Laney, for Appellee.

Stanford C. J. LaPrade and Morgan, JJ., concur.

OPINION

Stanford, C. J.

In this opinion we will designate the appellee the plaintiff, and the appellants the defendants as they were in the trial court.

The accident hereinafter described occurred on North Seventh Street between Roosevelt and Garfield Streets in the City of Phoenix, Seventh Street running north and south and the other two streets running east and west. There were traffic control lights at Roosevelt Street but none at Garfield Street.

During the noon hour on the 1st day of June, 1943, the mother of Howard Joseph Preach, Jr., who resided at 608 East Garfield Street with her husband and two other children, directed her son, Edward Joseph, who was four and one-half years old, to go to a pay-n-takit store on the east side of Seventh Street located between Roosevelt and Garfield Streets, and purchase a loaf of bread. Defendant Gideon, at about 12:30 o'clock on said date, was proceeding south on North Seventh Street with a truck belonging to defendant Womack. The truck was loaded with gravel and rubbish. Gideon stopped for the light signals at Roosevelt Street. When it was his time to proceed, he crossed Roosevelt Street and continued south at a speed of approximately fifteen miles per hour. The block between Roosevelt and Garfield Streets had many cars parked on both sides. The Preach boy did not go to the light signals on Roosevelt Street to cross Seventh Street, nor did he go to the crossing at Garfield Street, but went north on Seventh Street until he was opposite the pay-n-takit store and then attempted to cross Seventh Street. The driver of the truck apparently saw the boy crossing the street and swerved his truck to the east in an effort to avoid the boy, but was not successful and the boy was killed at a time when the truck was somewhere about the center of the road.

Plaintiff brought his action for damages against the defendants in the superior court for the death of the child. A jury returned a verdict for $ 5,000, and from that verdict, and the judgment following, defendants appeal.

Defendants, who have appealed herein, charged that the parents of the child were careless and negligent in sending him upon the street and the damage sustained was the direct and proximate result of such negligence and carelessness, and the same contributed to and helped to cause the death of the child.

Plaintiff maintains that the truck driven by defendant Gideon was not equipped with proper and sufficient brakes so that it could be kept under control; that the brakes were applied some thirty feet north of the place where the child was run over as shown by marks upon the pavement, and that the defendants wantonly, carelessly and negligently drove the truck injuring and killing said child.

The testimony shows that witness A. L. Miller, for defendant, who was sitting in his car parked diagonally in front of the pay-n-takit store, happened to be looking across the street at the time of the accident. To Mr. Miller the child appeared to be starting across to his side of the street at the same time he saw the truck. The child and the truck appeared to the vision of Mr. Miller about the same time and the best we can understand the testimony is that each was about fifteen feet from the point of impact; that the child started across the street where there were no signals, somewhat near the middle of the block, and commenced to run across from the rear of cars parked in front of a cleaning establishment. He also testified that the truck was swerving and the boy was inclining to the south, and that the truck swerved to the east of the center line of the street at the time of the impact.

Clifford Gideon, one of the defendants who also was the driver of the truck, testified that he had reported to the repair foreman of the other defendant, Mr. Womack, the fact that the brakes on the truck needed attention. He testified, however, that when he was driving the truck he had no idea that it was unsafe to be driving it.

The testimony of Charles Thomas, a police officer of the City of Phoenix, showed that from his measurements the truck commenced to swerve over thirty feet north of where the child was killed.

Witness T. R. Mofford, who qualified as Captain of Traffic of the Police Department of the City of Phoenix, and also who qualified that he had taken special training with regard to "checking cars stopping and traffic matters of that sort," and had taken a traffic and police course at the Northwestern University, testified that some thirty minutes after the accident he took the truck from the rear of the police station in Phoenix and drove it several blocks; that in so doing he tested the brakes as to their sufficiency and he testified that at ten miles an hour it took fifty feet in which to stop the truck by the use of both the foot and emergency brakes. He further testified that the brakes upon the truck were not sufficient and that if the brakes had been sufficient he could have stopped the truck in ten or fifteen feet going at the rate of ten miles per hour. The testimony further shows that the truck went approximately thirty feet after the accident.

Defendants refer to the case of Dattola v. Burt Bros., 288 Pa. 134, 135 A. 736, 737, 51 A. L. R. 205. Defendants quote from that case:

"One seeking damages for the negligent killing of his infant child must prove defendant's negligence without disclosing fault on his part, but is not required to disprove contributory negligence."

We quote further from said case:

". . . Parents are presumed to do their duty, and the mere fact that a child of tender age is momentarily found alone in a public street does not as matter of law establish the contrary. The mere happening of an accident neither proves negligence nor contributory negligence. Knowingly to permit a small child to wander unprotected upon city streets is want of care, but here the record is barren of any evidence of such permission. The presence of a child upon the street may be the result of parental negligence or in spite of its vigilance, and, in the absence of any explanation, a court cannot declare it the former. The question of parental care, or the lack of it, is one of fact, and usually for the jury. . . ."

To further sustain the view of the defendants, they have cited the following cases: Stumpf v. Montgomery, 1924, 101 Okl. 257, 226 P. 65, 32 A. L. R. 1490; McCullough v. Harshman, 1924, 99 Okl. 262, 226 P. 555; Millar v. Semler, 1931, 137 Or. 610, 3 P.2d 987; 1 Mechem on Agency, 2d Edition, Section 156, page 111, and many others.

We quote our constitution, Article 18, Section 5, under the heading of "Contributory negligence":

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."

In interpreting this section we have said in the case of Campbell v. English, 56 Ariz. 549, 110 P.2d 219, 221:

"We have passed upon the meaning and effect of this constitutional provision in innumerable cases and have held, in effect, that when the issue is one of contributory negligence, that is to say, when there is evidence from which a jury could find, under the rules above set forth, that the defendant was guilty of negligence, and one of the defenses is that plaintiff also was guilty of negligence, the constitution takes away from either the trial or appellate court the right to determine whether, as a matter of either law or fact, the evidence shows such contributory negligence to exist, and leaves the question both of law and fact on that particular issue to the decision of the jury. . . ."

Also in the case of Pearson & Dickerson Contractors v. Harrington, 60 Ariz. 354, 137 P.2d 381, 382, we said:

"It may be granted that plaintiff by his conduct contributed to his injury, but whether he did or not was a question for the jury. . . ."

Sec. 66-135, Arizona Code Annotated 1939, is as follows:

"Brakes. -- Every motor vehicle when operated upon a highway shall be equipped with brakes adequate to stop and hold such vehicle, including two (2) separate means of applying the brakes, each of which shall be effective on at least two (2) wheels and so constructed that no part which is liable to failure shall be common to the two, except that a motorcycle need be equipped with only one (1) brake. All such brakes shall be maintained in good working order and shall conform to regulations which may be adopted by the department."

Violation of the foregoing section...