Young Candy & Tobacco Co. v. Montoya

• Decision Date: 20 June 1962
• Docket Number: No. 6849,6849
• Citation: 372 P.2d 703,91 Ariz. 363
• Parties: YOUNG CANDY & TOBACCO COMPANY and John Paul Cox, Appellants, v. Valentin MONTOYA, Appellee.
• Court: Arizona Supreme Court

Page 703

372 P.2d 703

91 Ariz. 363

YOUNG CANDY & TOBACCO COMPANY and John Paul Cox, Appellants, v. Valentin MONTOYA, Appellee.

No. 6849.

Supreme Court of Arizona, In Division.

June 20, 1962.

McCarty, Chandler, Tullar & Udall, Tucson, for appellants.

Merchant, Parkman, Miller & Pitt, Tucson, for appellee.

J. SMITH GIBBONS, Superior Court Judge.

The appellee, Valentin Montoya, sued the Young Candy & Tobacco Company and John Paul Cox, appellants, for personal injuries alleged to have resulted from the negligent operation of a motor vehicle. The parties will be designated as they appeared in the trial court.

The accident occurred at the intersection of South Sixth Avenue, running north and south, and Pennsylvania Drive, running east and west in the City of Tucson. The defendant, Cox, was traveling north in the lane nearest the center of the road on South Sixth Avenue in a vehicle owned by his employer, Young Candy & Tobacco Company, at a speed of approximately 25 miles per hour. The plaintiff was within a marked pedestrians' crosswalk on South Sixth Avenue on the north side of said intersection. There were no traffic or street lights at this location and defendants concede that the headlights of on-coming traffic affected defendant, Cox' visibility to some extent; that he did not change his speed for reasons of visibility, and that he had considerably less vision in his left eye than in his right.

This cause was tried before a jury and a verdict returned for the plaintiff in the sum of $25,000. From the judgment based thereon and the denial of a motion for a new trial defendants appeal.

The assignments of error relate to the giving of certain instructions, refusing to declare a mistrial or grant a new trial on the ground of misconduct of plaintiff's counsel in his closing argument to the jury and in denying the motion for a new trial on the ground of excessive damages.

Plaintiff's instructions numbered 1 and 3 are as follows:

'PLAINTIFF'S REQUESTED INSTRUCTION NO. 1

'You are instructed that the owner of an automobile has the right to use the highways of the state provided, in using them, he uses reasonable care and caution for the safety of others. It is the operator's duty to keep his motor vehicle always under control so as to avoid a collision with others using the highway and he has no right to assume that the road is clear, but under all circumstances and at all times must be vigilent [sic] and must anticipate and expect the presence of others. And if he fails to use such reasonable care and caution and thereby injures another such failure on his part would constitute negligence and he would be liable in damages for any injury proximately caused by his negligence.

'You are instructed that pedestrians have a right to travel upon a public highway and an automobile driver is required to drive carefully to prevent danger to others using the highway. The driver has no right to assume that the road is clear but under all circumstances and at all times must be vigilent [sic] and must anticipate the presence of others and keep his machine under such control as will enable him to avoid collision with other persons using proper care and caution. [Pearson & Dickerson v. Harrington] 60 Ariz. 354 '

'PLAINTIFF'S REQUESTED INSTRUCTION NO. 3.

'The law imposes upon the driver of any vehicle using a public highway and upon a pedestrian, the same duty, each to exercise ordinary care to avoid causing an accident from which injury might result. The pedestrian's duty includes exercising ordinary care to avoid placing himself in danger. The driver's duty requires him to be vigilent [sic] at all times keeping a lookout for traffic and other conditions to be reasonable [sic] anticipated, and to keep the vehicle under such control that, to avoid a collision with any person, he can stop as quickly as might be required of him by eventualities that would be anticipated by an ordinary prudent driver in like position.'

Defendants assign as error the giving of Instruction No. 1 on the grounds, first, that it is repetitious in that it contains some of the same subject matter set forth in Instruction No. 3; and, secondly, that it placed a higher legal duty on the defendants than the law requires, in that it did not limit such duty to act as a reasonably prudent person under the circumstances.

The foregoing instructions do contain some of the same rules of law couched in differing language, but the repetition complained of here is not of such a nature as to constitute error on that ground. In the case of Reah v. Jupin, 68 Ariz. 335, 340, 206 P.2d 558, 561, we said:

'It is not reversible error for the court to give more than one instruction in different words covering the same question. * * *'

The second objection is without merit. This identical instruction was given and approved by this court in the case of Pearson & Dickerson Contractors Inc. v. Harrington, 60 Ariz. 354, 361, 137 P.2d 381, 384. The same arguments were advanced there as are here presented and in reply thereto we said:

'These instructions do not place 'an unconscionable burden' on defendant but lay down a rule necessary for the safety of the public and one not difficult to follow by persons exercising ordinary care, and of course they did not tell the jury that a driver of an automobile is liable for a collision with a pedestrian 'under any and all circumstances,' * * *.'

Defendants' suggestion that this rule is modified in Krauth v. Billar, 71 Ariz. 298, 226 P.2d 1012, is not true, as an examination of this case will readily disclose. We then held, and now reaffirm, that this instruction correctly states the law in this jurisdiction and in the public interest we see no reason to change it.

Defendants complain of plaintiff's Instruction No. 4 relating to the aggravation, by defendants' negligence, of a previously existing condition and that portion of No. 6 referring to a confused or incapacitated person, on the ground that there was no evidence of such facts in the case. This position is not well taken for there is such evidence, some of which is quoted by defendants in their briefs. The weight to be given such evidence is within the province of the jury and it is the duty of the Court to instruct the jury on all phases of the law applicable to the various fact situations developed during the course of the trial. Reah v. Jupin, supra.

Defendants further assert error in giving instruction No. 6 for the reason that it placed an absolute liability on a defendant who strikes a pedestrian in a crosswalk. This is sometimes referred to as the negligence per se instruction and it does not tell the jury that the driver of an automobile is absolutely liable for a collision with a pedestrian in a crosswalk under any and all circumstances. As we said in City of Phoenix v. Mullen, 65 Ariz. 83, 86, 174 P.2d 422, 424:

'We are committed to the doctrine that if the proximate cause of an injury to another is the failure of the driver of the vehicle to comply with the positive directions of the statute relating to the operation of motor vehicles, such failure or violation is negligence per se and actionable negligence.' (Citing cases)

The statutory provisions embodied therein are Sections 28-792 and 28-794, A.R.S.

Defendants concede the following: That the violation of a statute relating to the operation of a motor vehicle is actionable negligence...