Yellow Cab Co. of Phoenix v. Green

• Decision Date: 06 March 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 16 Ariz.App. 485,494 P.2d 385
• Parties: YELLOW CAB COMPANY OF PHOENIX, Inc., and Easton Earl Kelsey, Appellants, v. Myrna L. GREEN, a widow, Appellee. 1658.
• Court: Arizona Court of Appeals

Page 385

494 P.2d 385

16 Ariz.App. 485

YELLOW CAB COMPANY OF PHOENIX, Inc., and Easton Earl Kelsey, Appellants, v. Myrna L. GREEN, a widow, Appellee.

No. 1 CA-CIV 1658.

Court of Appeals of Arizona, Division 1.

March 6, 1972.

Evans, Kitchel & Jenckes, by F. Pendleton Gaines, III, Phoenix, for appellants

Eugene C. Simon, Phoenix, for appellee.

HOWARD, Judge.

This case involves a 'rear end' collision which took place on February 6, 1967, at the intersection of Osborn Road and 24th Street in Phoenix, Arizona. Appellant, Easton Earl Kelsey, was the driver of a cab owned by appellant, Yellow Cab Company of Phoenix, Inc., and the plaintiff below, Myrna L. Green, was the driver of the automobile rear ended by Kelsey. At the trial defendants Kelsey and Yellow Cab defended on the theory of a sudden brake failure. Defendant Yellow Cab's maintenance manager, called to testify on behalf of defendants, stated that the brake failure on the taxicab was found to have resulted from the sudden rupture of a flexible hose leading from the master brake cylinder to the left wheel. He further testified that the failure which occurred was sudden and total, and could not have been gradual.

Defendants appeal from a $5,000 jury verdict awarded against them contending that the court erred in giving a negligence per se instruction, in the admission of evidence outside the scope of the pleadings and pretrial statement, in allowing inadmissible hearsay and in denying a motion for mistrial after counsel had been apprised that the jury had viewed, during deliberation, exhibits which both parties had agreed were not to go to the jury.

NEGLIGENCE PER SE

The plaintiff requested, and the court gave, MARJI #11 on the subject of negligence per se. This instruction read:

'It may be necessary for you to consider in your deliberations what the law of the State was that was in effect at the time of the collision in question, and which controlled the operation of motor vehicles. I will read them as follows:

Every motor vehicle, other than a motorcycle or motor-driven cycle when operated upon a highway shall be eauipped (sic) with brakes adequate to control the movement of and to stop and hold the vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that the failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.

All brakes shall be maintained in good working order and shall be so adjusted as to operate as equally as practicable with respect to the wheels on the opposite sides of the vehicle.

No person shall drive or move on any highway any motor vehicle, semitriler (sic), or any combination thereof unless the equipment upon any and every Should you find that any part of this vehicle violated any of the foregoing laws, then it would be negligence as a matter of law, and you should then consider the issue of whether that negligence was a proximate cause of the plaintiff's injury.'

such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

Based upon the recent case of O'Donnell v. Maves, 108 Ariz. 98, 492 P.2d 1205 (No. 10336, January 26, 1972) the foregoing instruction is prejudicially erroneous.

In the O'Donnell case the plaintiff was struck from the rear due to the sudden brake failure of the Maves vehicle. He urged that he should have been awarded a directed verdict as to negligence in the trial court because the defendant was negligent per se due to his failure to conform to A.R.S. § 28--952, as amended, which requires every motor vehicle to be equipped with adequate brakes. The court held that only where, admitting the violation, the defendant fails to offer any legal excuse can negligence be said to exist as a matter of law. The court further held that when it is shown that the statute, A.R.S. § 28--952, has been violated, the burden shifts to the defendant to prove to the satisfaction of the jury that his failure to comply with the statute was without fault and that if there is sufficient evidence from which a jury could find that the brake failure was not due to fault of the defendant, it then becomes a question of fact for the jury to decide whether fault in fact existed.

There is no doubt in the case Sub judice that an issue of fact as to the brake failure was presented. Plaintiff claims that another instruction which was given by the court cures the error. This instruction stated:

'You are instructed that the mere fact that the brakes failed on the automobile driven by the defendant Easton Earl Kelsey is not, standing alone, sufficient evidence upon which to base a finding that he was negligent. You must also find that he knew, or in the exercise of reasonable care, should have known that his brakes would fail, and that he thereafter failed to act as a reasonable and prudent man under the circumstances.'

While it is axiomatic that instructions are to be construed as a whole, it is equally true that instructions must not be conflicting or contradictory. Glenn v. Chenowth, 71 Ariz. 271, 226 P.2d 165 (1951). If the instruction is misleading to the jury and prejudices the rights of the appellant the giving of that instruction constitutes reversible error. Noland v. Wootan, 102 Ariz. 192, 427 P.2d 143 (1967). The instruction of which the defendants complain tells the jury that a violation of the statute is negligence and that it has nothing further to consider upon finding a violation of the statute other than whether or not the negligence was the proximate cause of the plaintiff's injury. The instruction cited by plaintiff is exactly opposite to and conflicts with the...