Smith v. Delvin

728 P.2d 1231, 151 Ariz. 481, 1986 Ariz. App. LEXIS 647
CourtCourt of Appeals of Arizona
DecidedJanuary 28, 1986
DocketNo. 1 CA-CIV 7697
StatusPublished
Cited by1 cases

This text of 728 P.2d 1231 (Smith v. Delvin) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Delvin, 728 P.2d 1231, 151 Ariz. 481, 1986 Ariz. App. LEXIS 647 (Ark. Ct. App. 1986).

Opinions

JACOBSON, Judge.

On appeal we must decide if the trial court was justified in directing the verdict for the plaintiff/counterdefendant on both the complaint and the counterclaim.

This case arises out of an automobile collision that occurred on the afternoon of October 7, 1981, between vehicles driven by Teresa Smith and Dorothy Delvin, on the Beeline Highway north of Mesa, Arizona. The Smith vehicle was proceeding south in its proper lane of traffic when it collided with Delvin’s northbound vehicle, which was positioned partially in the southbound lane. The impact took place in the southbound lane, approximately four feet west of the centerline. Both drivers sustained serious injuries.

On March 23, 1982, Smith filed suit against Delvin alleging the accident was [482]*482due to Delvin’s negligence in being in the wrong lane, where Smith had the right-of-way. Delvin defended on the grounds that Smith was contributorily negligent in failing to keep a proper lookout. Delvin also counterclaimed against Smith for her injuries. After both sides presented their cases to the jury, the trial court granted directed verdicts in favor of Smith on the issue of Delvin’s liability and against Delvin on her counterclaim. The trial court instructed the jury that they must find in favor of Smith and left to the jury only the amount of Smith’s damages. Delvin appeals from the directed verdicts in favor of Smith and from the denial of her motions for new trial.

Appellant correctly asserts that it is almost never appropriate for the trial court to take the issue of contributory negligence from the jury. The Arizona Constitution states 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.” Ariz. Const, art. XVIII, § 5. In interpreting this provision, the Arizona courts have steadfastly held that the power or duty to settle the question of contributory negligence is strictly a function of the jury. See, e.g., Alabam Freight Lines v. Phoenix Bakery, 64 Ariz. 101, 166 P.2d 816 (1946); Pearson & Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943). A directed verdict cannot be granted if any evidence shows or tends to show the plaintiff is guilty of contributory negligence. Flashberg v. Krebs, 8 Ariz.App. 254, 445 P.2d 456 (1968). On the other hand, the issue of contributory negligence should not go to the jury if there is not sufficient evidence from which reasonable men might conclude that the plaintiff was negligent. Mitchell v. Colquette, 93 Ariz. 211, 379 P.2d 757 (1963); Citizens Utilities Co. v. Firemen’s Ins. Co., 73 Ariz. 299, 240 P.2d 869 (1952); Motors Ins. Corp. v. Rhoton, 72 Ariz. 416, 236 P.2d 739 (1951); Humphrey v. Atchison T. & S.F. Ry. Co., 50 Ariz. 167, 70 P.2d 319 (1937). Additionally, although it is seldom appropriate to take the question of negligence from the jury, Wilson v. City of Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968), a directed verdict is proper where the evidence is such that no reasonable person could find the existence of essential elements of actionable negligence. Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333 (1962). Appellee maintains that the evidence at trial tending to show that Smith was negligent and contributorily negligent in failing to keep a proper lookout was so insubstantial and speculative that the trial court was correct in taking these issues away from the jury.

This case presents a problem in trying to determine how the accident occurred. Specifically, the difficulty arises in determining how and when Delvin’s car entered Smith’s lane. Only after resolving this question could a jury decide whether Smith failed to keep a proper lookout. Unfortunately, there were no eyewitnesses to the accident other than the parties themselves. Delvin’s version of what happened, which she described in a written statement a few weeks after the accident and in her deposition, differed significantly from the account she had given on the day of the accident. Moreover, Smith’s version, which she repeated in a written statement soon after the accident, in her deposition, and at trial, differed from the statement an investigating police officer claimed she gave him on the day of the accident.

A few facts in this case are uncontested. The Beeline Highway in the vicinity of the accident is a two-lane highway with 13-foot wide lanes. Twenty-six-year-old Smith was traveling southward on the Beeline. Because the highway is very flat and straight along this area, Smith’s view of the road before her was unobstructed and she could see for a distance of approximately one mile. Smith saw no traffic for a considerable distance, prior to the accident. She testified that she was tired after a busy day at work. She had an open can of Pepsi in the car from which she took a drink from time to time.

The land surrounding the Beeline in this area is desert land, that constitutes part of the Salt River Indian Reservation. A small ranch was situated in the distance to [483]*483Smith’s right. Approximately 85 feet south of the accident scene, a dirt path leading from the ranch intersects with the Beeline. Approximately 114 feet south of the accident scene, Thomas Road intersects on the left of the Beeline. Approximately .2 miles south of Thomas Road, North Mesa Drive intersects with the Beeline from the right. Vehicles on the Beeline Highway have the right-of-way through this area.

Seventy-three-year-old Delvin was attempting to return from Mesa to her Phoenix home by a route she had not traveled before. She arrived at the Beeline and turned to proceed upon it in a northbound direction. Within seconds, the two cars collided, the front of Smith’s car striking the front driver’s side of Delvin’s vehicle. The impact occurred at approximately four feet across the centerline and into Smith’s lane.

The key factual dispute concerns how and when Delvin crossed into Smith’s lane. There is no question that Delvin was negligent in being in the path of oncoming traffic which had the right-of-way. Nevertheless, a driver may have the right-of-way and still be negligent or contributorily negligent. Hunsaker v. Smith, 1 Ariz.App. 51, 399 P.2d 185 (1965). As the Arizona Supreme Court stated in Henderson v. Breesman, 77 Ariz. 256, 269 P.2d 1059 (1954):

[A] driver having the right of way ... is still under an obligation to make that degree of observation ... as [sic] a reasonably prudent person would have made under such conditions.

Id. at 261, 269 P.2d at 1063; See Egurrola v. Szychowski, 95 Ariz. 194, 388 P.2d 242 (1964). In Davis v. Weber, 93 Ariz. 312, 380 P.2d 608 (1963), our Supreme Court indicated:

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728 P.2d 1231, 151 Ariz. 481, 1986 Ariz. App. LEXIS 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-delvin-arizctapp-1986.