Esquivel v. Nancarrow , 104 Ariz. 209 ( 1969 )

McFarland, justice:

Appellants David and Ophelia Esquivel brought this action to recover for the death of their three-and-a-half-year-old son “Rickey,” who was killed by an automobile driven by defendant Nancarrow.

Appellants list twelve assignments of error. The first two pertain to the admission of evidence to which they objected; the next five pertain to the trial court’s refusal to give requested instructions; the last five pertain to instructions given over appellants’ objections.

The accident took place at night, in Tucson, Arizona, on a dimly-lighted portion of Speedway Boulevard, which, at that time and place, was heavily traveled, and consisted of two Eastbound lanes and two Westbound lanes. Defendant-appellee Nancarrow was driving west in the lane nearest the north curb with his car’s lights on. There were cars ahead and behind him, and cars coming toward him in the Eastbound lanes. There was evidence that he had been drinking, and that he was driving at approximately the speed limit of thirty-five miles per hour. Suddenly he saw almost immediately in front of his car two six-year-old boys running across Speedway from south to north. He braked lightly and swerved to avoid hitting them, and then heard and felt a thump. He immediately stopped, and ran back to flag oncoming cars, but was unable to prevent two more cars from running over a third boy, age three and a half, lying in the street, though there is some dispute as to whether those cars actually struck the child or merely straddled him as they passed over him. The three children were crossing the street together, with the two older ones slightly ahead of the younger one. All three were “running fast.” Nancarrow did not see the third boy at all before the impact.

In Assignment of Error No. 8, appellants complain of an instruction given by the court to the effect that Arizona law requires a pedestrian, attempting to cross a street at a point other than at a crosswalk, to yield the right of way to all vehicles on the street. The objection is that this instruction directly contradicts another which told the jury that a three-and-a-half-year-old child is incapable of contributory negligence.

The point is well taken. Although the Arizona law which requires pedestrians crossing at places other than crosswalks, to yield to vehicles, applies to all persons, adult, and children alike, it cannot be the basis of attributing contributory negligence to a child of the tender years of the deceased. Therefore, it was not only unnecessary, but confusing to the jury.

Some light on the reasons for this instruction may be found in the colloquy in chambers at the time the instructions were settled. The following appears in the reporter’s transcript of the record:

“By the Court: Here is maybe what I can do, like your number two. If I started out ‘considering the circumstances surrounding the conduct of the defendants, you may consider the following :’

“By Mr. Dickerson: ‘but you are not to consider this as contributory negligence on the part of the child.’

“By the Court: At the end of the instruction * * * I will remind them again * * * ‘the law does not provide that a child of four years of age can be contributorily negligent.’ I can put that in.

“By Mr. Briney: T thought you had already covered that.’

“By the Court: What Vern is saying is that he thinks I ought to point that out again right close to this instruction * *

“By the Court: * * * I give him a birthday cake with candles on it and he wants a stand to put it on. I wish I had wrote [sic] that down when I said it, because the way I said it was awful [sic] good. * * * This is going to read ‘In considering the conduct of the defendants on the issue of whether or not the defendants were negligent, you are instructed that the law of Arizona provides that every pedestrian. * * *’ Yes, that will he given as modified. That Briney is a persuader.”

In other words, it was the court’s idea that, by prefacing his reference to the law concerning pedestrians with the words “In considering the conduct of the defendants,” he was preventing the jury from thinking that the child was governed by that instruction. We cannot be sure that the instruction would have that effect. It was confusing, and could have been understood as contradicting the instruction on the child’s contributory negligence. Worst of all, it was not applicable to the facts in the case, as there was no adult pedestrian involved. In Pacific Greyhound Lines v. Uptain, 81 Ariz. 359, 306 P.2d 281, and in City of Phoenix v. Mubarek Ali Khan, 72 Ariz. 1, 229 P.2d 949, the following statement was quoted from an opinion of this Court in Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325:

“An instruction not based upon the evidence in the case is misleading and calculated to induce the jury to suppose that such a state of facts, in the opinion of the court, is possible and may be considered by them.”

In Glenn v. Chenowth, 71 Ariz. 271, 226 P.2d 165, this Court made the following statements:

“* * * Abstract propositions of law even though correct are not favored in Arizona.

* * * * * *

“It is a well-settled proposition of law that instructions must not be conflicting or contradictory. [Cases cited.] * * ”

In the case of Daun v. Truax, 56 Cal.2d 647, 16 Cal.Rptr. 351, 365 P.2d 407, the Supreme Court of California had before it almost exactly the same conflict in the instructions, although the instructions in that case went further and stated that the violation of the statute was negligence per se. That additional fact, however, does not invalidate the court’s reasoning. It said:

“Reliance is had on the well-settled rule that instructions must be read together, and, it is urged, that, when so read, any conflicts in the instructions disappear * * * It is quite clear * * * that the instructions are not only ambiguous but actually conflicting.”

In Gilbert v. Quinet, 91 Ariz. 29, 369 P. 2d 267, we had before us a case of a child crossing a street in front of a bus. The trial court instructed the jury that the bus driver might assume that others would not violate the law, and then instructed on the duty of care of a small child. As in the instant case, contributory negligence of the child was not in issue. We said:

«* * * A defendant’s negligence is not dependent upon what he might have foreseen as to a particular plaintiff, but upon the foreseeability of danger of harm to anyone in the plaintiff’s position. * * * A bus driver who fails to keep a proper lookout * * * is not any less negligent when he runs into a knowledgeable seven year old than when he runs into a toddling two year old, though in the former case he may have a defense of contributory negligence. * * ”

Appellants also complain that it was error to instruct the jury on unavoidable accident. Since the case was tried, in Trickel v. Rainbo Baking Co., 100 Ariz. 222, 412 P.2d 852, we held that “it is always error to give an instruction on unavoidable accident.” However, the above instruction makes the unavoidable-accident instruction even more objectionable, as the jury might conclude since the child was crossing at a point other than a crosswalk, it was an unavoidable accident. For these reasons we conclude that the case must be reversed.

Since the case must be remanded for a new trial, we will make some observations on the other assignments of error, many of which would not otherwise be considered, because the objections were not timely made, or were not sufficiently specific.

Appellants claim that the trial court erred in allowing a police officer to answer the following question:

“Based upon your experience would you say that anything was brought to your attention that would indicate that Mr. Nancarrow was intoxicated?”

Appellants’ objections are that the question calls for an opinion, and that foundation laid was insufficient. The case they cite to support their view—Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849—is not in point. The rule is well-settled, and nearly universal, that lay witnesses who have had a sufficient opportunity to observe a person may testify as to whether that person appears to be intoxicated. Randal v. Deka, 10 Ill.App.2d 10, 134 N.E.2d 36; Guedon v. Rooney, 160 Or. 621, 87 P.2d 209, 120 A.L.R. 1298; Udall on Arizona Evidence, page 39. Prior to asking the question, the examining attorney had the witness describe the extent of his observation. It is for the jury to determine the weight to be given the opinion.

Appellants next contend that the trial court erred in admitting parts of a statement made by defendant Schwatken, in writing, to an insurance adjuster, because the parts objected to were not against interest and were hearsay.

Appellants themselves offered part of the statement as an admission against Schwatken, after first being warned by the court that if they did so, opposing counsel would be permitted to offer the rest of the statement. Since the statement was offered against defendant Schwatken, and since he is no longer involved in this lawsuit and cannot be a party at the new trial, we do not deem it necessary to go into the merits of this assignment of error.

Appellants also contend that the court should have given their requested instruction No. 3 which purported to instruct the jury that a driver who sees, or should see, a child in the street must make every effort to avoid striking him. The instruction is erroneous in requiring a party to make every effort to avoid striking a child he does not see. The undisputed evidence showed defendant did not see the child.

Appellants contend that the court should have given their requested instruction No. 6 to the effect that experience justifies the inference that one who looks in the direction of an object clearly visible sees it, and failure to see that which is in plain sight requires the conclusion that either the evidence of having looked was false, or the looker was “negligently inattentive.”

This instruction does not apply to the evidence in this case, which indicated that the deceased child was running across a dimly-lit street having four lanes of heavy traffic, at night. It is common knowledge that one’s car lights illuminate only the path ahead and the shoulder to the right, so as not to blind on-coming motorists. The three lanes to Nancarrow’s left would have been relatively dark, and the presence of the third child might easily have been difficult to discover until he had almost reached the lane of Nancarrow’s auto. The instruction, therefore, in referring to the child as “that which is in plain sight” is inapplicable to the facts of the instant case.

Appellants object to the deleting from their requested instruction No. 8, words indicating that it was Nancarrow’s duty to keep his car “under such control that * * * he can stop as quickly as required of him by eventualities that would be anticipated by an ordinarily prudent driver in like position.” We think that the deletion was proper. A court cannot give every instruction requested, merely because it is correct, and there is some doubt whether the above deleted words would have been correct in the light of the evidence in the instant case, and of our holding in Schmerfeld v. Hendry, 74 Ariz. 159, 245 P.2d 420, in which we held that it was proper to instruct that “a driver is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances.” In any event, reading the instructions as a whole, we' can see no reason to require the giving of that part of the instruction which was deleted here.

Appellants next argue that it was error to refuse a requested instruction that if a child is in the highway for such a length of time that the defendant “in the exercise of due care should have seen him and avoided the accident, the defendant is liable. * * *” The length of time the child is in the highway is not the test. The exercise of due care required of a defendant was covered by other instructions.

Appellants also complain that the court refused to give an instruction that:

“If an autoist cannot see where he is going, he should stop. If his vision is limited, he should have control of his car so as to be able to stop within the radius of his vision. If he violates these reasonable and sane rules, he is guilty of legal negligence.”

Such an instruction clearly would have been erroneous. It was taken from Atchison, Topeka, and Santa Fe v. Parr, 96 Ariz. 13, 391 P.2d 575. But that case involved a car driving in “a dust storm so severe that objects could not be seen more than a few feet ahead.” The evidence in the instant case shows it was a clear night, and that the car was equipped with good headlights. As previously pointed out, the duty of care was covered by other instructions. Robledo v. Kopp, 99 Ariz. 367, 409 P.2d 288.

Appellants contend that the court erred in giving defendant’s requested instruction No. 4, that a driver “is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances.”

Their argument is that there is no evidence of “sudden appearance,” because the child must have crossed the three lanes of traffic to the left of Nancarrow’s lane, and therefore the facts fit such cases as Womack v. Banner Bakery, Inv., 80 Ariz. 353, 297 P.2d 936. In Womack we held that where a driver observed a child in a position of safety, not in the street, it was error to instruct that the driver need not anticipate that the child would run into the street. The facts involved were entirely different from those of the instant case, and though it would have been better to refuse to give the instruction, we cannot point to it as reversible error.

Appellants next contend it was error to instruct the jury that it is the duty of parents of children of tender years to use reasonable care to protect them against the known hazards of being present on a street, and that to suffer such a child to go upon a street unattended may constitute negligence. The complaint is not that the instruction is bad law, but that there was no evidence at all to show any negligence on the part of the parents.

It must be admitted that the proof of the contributory negligence of the parents was weak. But the fact that the child was in the street, unaccompanied by either parent or by any one in whose custody the child had been placed, is a fact from which lack of due care on the part of the parents might be inferred, in the absence of any evidence by the parents of having placed some responsible person in charge of the child. All that the parents showed was the father was away from home, and the last time the mother saw the boy, he was watching television. Under all the circumstances, we cannot find any error in the instruction complained of.

Lastly, argue appellants, it was error to instruct the jury that

“ * * * if you find * * * that the death * * * was not caused in whole or in part by the motor vehicle driven by any particular defendant, you must return your verdict in favor of that defendant.”

The complaint is that the instruction was bad because it used the word “must,” which was banned by our decision in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444, and cases following it.

This is the first time that any one has attempted to extend the rule of that case to negligence, as well as to contributory negligence. The Layton case cannot be so interpreted, but even if it could the rule would not apply to the instruction given in the instant case because in it the court was not referring even to negligence. It specifically referred only to causation. Since there was some doubt as to whether one of the defendants’ vehicles actually struck the boy, the instruction was proper to tell the jury that, in such a case, it must find for that particular defendant. In the retrial, this issue will not occur.

For the above reasons, this case is reversed and remanded for a new trial in conformity with this opinion.

UDALL, C. J., and LOCKWOOD, V. C. J., concur.