Zancanaro v. Hopper, 5785

• Citation: 79 Ariz. 207,286 P.2d 205
• Decision Date: 12 July 1955
• Docket Number: No. 5785,5785
• Parties: John C. ZANCANARO, a minor, by D. J. Sweeney, his guardian ad litem, Appellants, v. O. F. HOPPER, Virgil C. Stuart and Shell Oil Company, a Delaware corporation, Appellees.
• Court: Supreme Court of Arizona

Page 205

286 P.2d 205

79 Ariz. 207

John C. ZANCANARO, a minor, by D. J. Sweeney, his guardian ad litem, Appellants, v. O. F. HOPPER, Virgil C. Stuart and Shell Oil Company, a Delaware corporation, Appellees.

No. 5785.

Supreme Court of Arizona.

July 12, 1955.

I. B. Padway, San Jose, Cal., Minne & Sorenson, Phoenix, by Richard Minne, Phoenix, Lewis, Roca, Scoville & Beauchamp, Phoenix, by John P. Frank, Phoenix, of counsel, for appellant.

Wilson, Compton & Wilson, by Orinn C. Compton, Flagstaff, for appellees, Hopper and Stuart.

Kramer, Morrison, Roche & Perry, by Allen K. Perry, Phoenix, for appellee, Shell Oil Co., a Delaware corporation.

PHELPS, Justice.

John C. Zancanaro, by his guardian ad litem, D. J. Sweeney, plaintiffs-appellants, appeal from a judgment for defendants O. F. Hopper, Virgil C. Stuart and Shell Oil Company, a Delaware corporation, defendants-appellees, in an action for personal injuries. To avoid confusion the parties hereto will be referred to herein by their surnames.

Zancanaro at the time the injury was sustained was 17 years of age. He was duly licensed to operate a motor vehicle in the state of Wisconsin and was on a vacation trip with his parents from Milwaukee to the Grand Canyon. Young Zancanaro had relieved his father at the wheel occasionally on the trip and had driven from Showlow to Holbrook, Arizona, where the accident occurred.

As Zancanaro came into view of the town of Holbrook at the top of the hill south of said town he reduced his speed to 25 mph in compliance with a road sign located in that area. As he approached the south end of the bridge across the Little Colorado River on the edge of Holbrook he further reduced his speed to 15 to 20 mph. A car came from Highway 260 onto Highway 77 over which Zancanaro was traveling, a few blocks south of the south end of the bridge and proceeded toward Holbrook ahead of him. When the Zancanaro car reached a point about 30 feet south of the south end of the bridge the car ahead of him was about half-way across the bridge. Hopper's truck was on the bridge at that time proceeding south and met the car ahead of Zancanaro a little north of the middle of the bridge.

The bridge is 400 feet long and 19 feet wide from curb to curb. There was a white line in the center of the road across the bridge. Although worn some in places more than in others, it was visible at all times while crossing the bridge. Zancanaro's car at its widest point was about six feet wide and the handles to the doors projected therefrom approximately two inches. The truck was approximately eight feet wide.

Immediately after the truck met the car ahead of Zancanaro it swerved to the right and then back across into the east lane of traffic on which Zancanaro was proceeding. It remained in the east lane of traffic thereafter until it met his car. However, the distance of both the front and rear wheels of the truck from the center line varied as the truck approached Zancanaro's car. The truck had dual wheels on the rear and they extended out further than the front wheels. The left front wheel of the truck was on the center line of the road part of the time but at the time of the accident it was about one foot over the center line on Zancanaro's lane. The rear wheels of the truck at that time were a foot and a half over the center line. Zancanaro's car was approximately one and one-half feet east of the center line at the time the accident occurred.

Zancanaro was driving with his left elbow resting upon the window sill of the door with his right hand near the top of the steering wheel and his left hand on the left side thereof. His elbow extended beyond the window three or four inches. As the truck was passing the car a square tubular piece of steel forming a part of the left front corner of the frame struck Zancanaro's left arm, badly injuring it, requiring an immediate amputation. This operation was performed a short time later in a hospital at Holbrook. It is for this injury that plaintiffs prosecuted this cause of action.

Defendant Stuart both denied and admitted that he was over the center line of the road at the time of the accident and also testified that he did not know whether he was over the line or not. He did not know whether there was a white line in the center of the road on the bridge. He stated the accident took place about 10 feet from the south end of the bridge. Zancanaro testified it occurred about 100 feet from the south end of the bridge.

The judgment herein from which this appeal was prosecuted was entered upon an instructed verdict by the court for all of the defendants at the close of plaintiffs' case. The conflicting evidence, therefore, must be considered in the light most favorable to plaintiffs. Gallaway v. Smith, 70 Ariz. 364, 220 P.2d 857; Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 267 P.2d 1076. Where the evidence of the party against whom a verdict is directed is undisputed it must be considered as true. Barker v. General Petroleum Corp., 72 Ariz. 238, 233 P.2d 449.

Plaintiffs, as grounds for appeal, charged first that it was error for the trial court to take the question of contributory negligence away from the jury for the reason that article 18, section 5, of the Arizona Constitution provides that the defense of contributory negligence shall in all cases whatsoever, be a question of fact and shall at all times be left to the jury. Secondly, they charged that the court erred in holding that the defendant Hopper was not an agent of the Shell Oil Company and that there was sufficient evidence thereof for the case to go to the jury on both issues.

We will first dispose of the question involved in the direction of an instructed verdict by the court in favor of the Shell Oil Company. In doing so, we believe it will not be necessary to consider the question of whether the contract between the Shell Oil Company and Hopper created the relation of principal and agent.

The truck in question is the property of Hopper and under the terms of the contract with Shell Oil Company it assumed no obligation to maintain or repair said truck. At the time of Zancanaro's injury the truck was being driven to Fischer's garage for repairs. Stuart had driven it that day to Clay Mines about 60 miles east of Holbrook which he had served with Shell products.

On the return trip, soon after leaving Clay Mines the motor began to miss badly so that it required about three hours to make the return trip to Holbrook which was ordinarily made in one and a half hours. Stuart testified that he stopped at Hopper's home to tell him the motor was missing and asked where he should take it to have it repaired and was directed by Hopper to take it to Fischer's garage which is located two or three blocks south of the Little Colorado River bridge on Highways 77 and 260. The Shell Oil Company's plant from which distribution was made is located on the north side of the bridge on the A. T. & S. F. Railway property in Holbrook.

It follows that even if the contract above mentioned created the relation of principal and agent between the Shell Oil Company and Hopper as claimed by plaintiffs, which we do not here decide, it is clear that the business of the Shell Oil Company was concluded for the day when Stuart drove the truck to the home of Hopper and reported the motor out of order and was...