Tenney v. Enkeball

FAULKNER, Superior Judge. This action was brought by the appellee, Balph Enkeball, a minor of the age of twelve years, by his guardian ad- litem, against the appellant, W. D. Tenney, and his brother, Boyd Tenney, to recover damages for injuries received on July 22, 1942, when a truck owned by appellant and used in the operation of a garbage route, ran over appellee. Such injuries consisted of a compound fracture of the femur, and severe lacerations and multiple contusions. Some twenty stitches were required to sew up the lacerations. The fracture slipped after the leg had been placed in a cast. When it was reset, it became necessary to make a long slit in the flesh and insert a metal splint and fasten the same with screws, in order to hold the bone in place. It also was necessary to give appellee a blood transfusion. Appellee suffered great pain and required treatments extending over a period of many months, and incurred surgical, hospital and other expenses in connection with the injury, amounting to $1260. At the trial,. *419 which occurred nearly a year after the accident, his surgeon testified that the injuries would not he permanent, but there still was atrophy of the muscles of the injured leg, and it was smaller than the other leg. The case was tried before a jury which found in favor of Boyd Tenney, but rendered a verdict in favor of appellee and against appellant for $2850. This appeal is from the verdict and judgment, and from an order overruling appellant’s motion for a new trial. Appellant secured a certificate of convenience and necessity from the Arizona Corporation Commission authorizing him to operate a garbage route in Miller Valley, adjacent to the city of Prescott, and operated the same in person for some time prior to 1942, when he moved to Flagstaff, and left the business in charge of Boyd Tenney, with authority for the latter to employ the help necessary. Boyd Tenney had no interest either in the truck or in the garbage route, but merely acted as agent for appellant. About April 1942, Boyd hired Austin Hogue, an eighteen year old boy, to run the truck and operate the route. Later he hired appellee at a wage of $4 per week to work in his feed store, and permitted him at times to assist Hogue in collecting the garbage, charging part of his wages to appellant. The accident occurred on the fourth trip appellee made with Hogue. They were accompanied by Luther Hamilton, a boy about the age of appellee. The two boys carried the smaller containers to the truck, while Hogue handled the larger ones. The boys rode on the running boards or fenders between stops. Hogue testified in substance that the last stop on the day of the accident was on Lincoln Avenue; that he drove from thence to and along Whipple Street and turned north on Ruth Street, and turned comers as he entered each of the streets; that he was driving about ten miles an hour when he turned into Ruth Street, but got back to about fifteen or twenty miles *420 after he straightened up on Ruth Street at the time of the accident; that at the last stop on Lincoln Avenue both boys got on the running hoard of the truck, Enkeball on the right-hand side, and Hamilton on the left; that he “told them they should not be riding on the running boards as it was dangerous”; that he thought Enkeball was on the running board when he made that statement; that after he started the truck and came close to "Whipple, he noticed that Enkeball was on the fender; that 44he had moved over from the position of riding on the running board to the position of riding on the fender between this last stop and Whipple Street”; that he was on the fender when the turn was made into Whipple Street, and when the truck turned the comer into Ruth Street. The following excerpts from the testimony are presented here, as a basis for the discussion of the assignments of error hereinafter mentioned. Hogue testified as follows, in answer to questions by Mr. Head, attorney for Boyd Tenney: “Q. Bid you notice after you started down Ruth Street and after you straightened out toward the houses there north as to whether he was still on the fender? A. Yes, sir. “Q. In what position was he as you recall from his observation? A. I did not notice him very close. It looked like he was leaning over. “Q. That was after you got on Ruth Street? A. Yes. “Q. As far as you noticed he was leaning over? A. As far as I could see. It might have been he caught his foot or whatever he had there and fell off, I couldn’t see. “Q. How would you think he would catch his foot? A. The tires of the wheels are not very far from the fender and he had his legs hanging down there. “Q. He had his legs down where the wheels were? A. Well, down in front of the truck. 44 Q. From your observation he was sitting with his feet hanging down over the wheel? A. Yes, sir. *421 “Q. You stated that you had told Ealph Enkeball and Luther Hamilton both to stay off the fenders of the truck over there on Lincoln Avenue, so you had every occasion to tell Ealph Enkeball before that time to watch his safety and stay away from dangerous parts of the car? A. Yes, sir. “Q. Do you recall how many times you told him? A. Usually every time I started out I told him. “Q. What did he do with reference to your orders in that regard? A. Well, he would not listen to me it seemed.” All the testimony offered on behalf of Boyd Tenney was adopted by appellant as his testimony in the case. The evidence showed that appellee had done very little riding in automobiles. His family had owned a car at one time for about two weeks. He testified in part as follows: “ ... I kept riding on that fender off and on for a while, and then when we got to our last stop on Lincoln Avenue, why, I got on the fender and then I rode on the rest of the way down Lincoln and then up Whipple Street, and then he rounded the corner at Euth and Whipple. . . . Yes, sir, he went right close to the edge and he just missed the fence and I got quite a bit dizzy there . . . and then he swerved back to get on the right-hand side of the road and I was pitched in front of the car, in front of the truck.” In describing the truck, appellee said: “Well, it had a stake body in the back and was awfully wobbly and was not very good in the back, and the door was loose and would fly open sometimes, and the fender, the left fender it was, . . . yes, it was the left fender that had the crack in it up there. It had been welded, but the welding had broke. It was loose and wobbly and there was no bumper on the front. . . .Yes, sir, the windshield was broken.” Appellee further testified that he rode on the fenders the three previous trips; and that he did not want to ride on the running board because the door was broken *422 and would fly open sometimes; and that it was handy to slide off the fender to run and get the garbage; and that he did not remember that Hogue had ever told him to keep off the fenders. Appellant testified that the truck was a 1935 Chevrolet, and was in A-l condition when he saw it last. He had not heard that the windshield was broken, and did not know that the fenders were loose. They were in good condition when he saw them. He admitted that he owned the truck and garbage route at the time of the accident. The following testimony of appellee is quoted in appellant’s brief: “Q. When you were on the fender of the car out there you knew it was not safe to be there and you knew it was safer to be in the cab, didn’t you? A. Yes, in a way. “Q. You knew if you fell off of that fender it would be dangerous? A. Yes. “Q. In fact, when you were sitting on the fender you could see the wheel turning under the fender, couldn’t you? A. Yes, sir. “Q. So when you got up on that fender you actually knew you were in danger of your life and you might be killed in getting up on that fender? A. No, sir, I didn’t. ‘ ‘ Q. You did not think you would be killed? A. Well, not actually. If he had drove slowly I probably would not have. “Q. You knew there was danger in any speed of riding on a fender if you fell off? A. Oh, yes. “Q. When you got out there you knew that? A. Well, in a way, but in a way I did not.” Appellant adds this comment: ‘ ‘ The plaintiff admits by the above quoted testimony that he realized the danger of riding upon the fender of the truck and had a full appreciation of the hazard involved.....” *423 Appellant made ten assignments of error. His first assignment is directed at an instruction which submits a hypothetical proposition based upon appellee’s theory of the case, and directs that if the jury finds certain facts, “such failure constitutes negligence, and would be the proximate cause of the injury.” Appellant complains that the instruction was defective, in that it failed to mention his defense of contributory negligence, and “That it attempted to outline the duties and responsibilities of the driver of the truck without relation to any corresponding duties and responsibilities on the part of the plaintiff-appellee.” We think the evidence justified the giving of this instruction. The court elsewhere in its instructions fully instructed the jury as to the defense of contributory negligence. Under a rule so well known that no citation of authorities is needed, the instructions must be read and considered as a whole and, if the subject is fully covered anywhere in the instructions, they need not be repeated in instructions dealing with other phases of the case. This instruction appears to be practically the same as the instruction considered by this court in the case of Pearson & Dickerson Contractors v. Harrington, 60 Ariz. 354, 364, 137 Pac. (2d) 381, 385, wherein a hypothetical proposition was presented, and the court said: “The instruction left it to the jury to determine whether the facts upon which it was based had been established by the evidence. If the facts were established, one conclusion of law followed, to wit, defendant was guilty of negligence. The defendant made no request of the court ‘to state the law as applicable to the converse of the facts supposed,’ as was its right and privilege. The instruction was not subject to the objections named.” In this case, appellant made no request for an instruction based upon his view of the evidence, and *424 stating the converse of the hypothetical instruction given upon the request of appellee, and therefore cannot complain because the court failed to do so. An instruction of like character is complained of in appellant’s third assignment, and is disposed of by what is said concerning his first assignment. Appellant’s second assignment alleged error in the giving of appellee’s seventh requested instruction, the pertinent part of which reads as follows: “I charge you that if you find from the preponderance of the evidence in this case that the plaintiff, Ralph Enkeball, sustained injuries and damages as alleged in his complaint, and that such injuries were caused through the carelessness and negligence of the driver of the truck, Austin Hogue, in permitting the plaintiff to ride on the fender and in the operation of said truck, and that the plaintiff was free from negligence as defined in these instructions, then I instruct you that the plaintiff is entitled to recover damages against the defendants for such injuries as the evidence may show him to be entitled.” Appellant’s driver, Hogue, had complete control of the truck, and drove it several blocks with full knowledge that appellee was in a dangerous position on the running board, and saw appellee’s feet hanging near the wheel. Appellant takes exception to the suggestion in this instruction that appellee was “permitted” to ride on the fender. Ballentine’s Law Dictionary, page 956, defines permit as follows: “To allow to be done by consent or by ■ not prohibiting. ” Black’s Law Dictionary, De Luxe Edition, page 1353, gives the following definition: “To acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.” In a similar case involving a boy of the age of fourteen years, the North Dakota court said: *425 “It is jjlain that, if defendants, at the inception of the journey, had stopped their car and compelled the boy to have gotten off the car and remained off, which they had a perfect right to do, ... no injury to him would have occurred.” Grabau v. Pudwill, 45 N. D. 423, 178 N. W. 124, 126. We think that in view of all the circumstances as shown by the evidence this instruction was not erroneous. We cannot agree with appellant’s conclusion that appellee fully realized his danger. The fourth assignment is directed against an instruction on last clear chance, which appellant contends was not justified by the evidence in the first place, and was defective in that it did not cover all the essential elements of last clear chance. The evidence showed that appellant’s driver, who had complete control of the truck, drove several blocks with appellee on the running board in a position which the driver knew to be dangerous. He had told appellee that it was dangerous. He saw appellee’s legs hanging down near the wheel just prior to the accident while he was driving at fifteen or twenty miles an hour, and made no attempt to stop the truck. We think the evidence justified an instruction on last clear chance. If appellant considered it incomplete, he should have requested an instruction that did fully cover the situation. Apparently no such instruction was requested. Assignments V and YII raise objections to instructions given at the request of appellee, upon the ground that they involve the principle of res ipsa loquitur. Appellant contends the principle is not involved in this case, and that the giving of an instruction upon that subject is prejudicial to him. The truck, the instrumentality which caused the accident, was entirely under the control of appellant’s driver, Hogue, who had full knowledge of the precarious position of appellee at the time of the accident. In the case of *426 Sawyer v. People’s Freight Lines, 42 Ariz. 145, 149, 22 Pac. (2d) 1080, 1081, this court said: “In some eases the maxim res ipsa loquitur, which is a rule of evidence only, steps in and supplies sufficient proof of negligence to require the defendant to show that it was not through his fault that plaintiff was injured. Such cases arise: ‘Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions so that the occurrences of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence.’ 45 C. J. 1193, §768. If the elemental facts enumerated in this rule are present, a plaintiff has established a prima facie case. The presumption or inference of negligence arises from the inherent nature and character of the act causing the injury. ...” In Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 Pac. (2d) 952, 954, this rule is reiterated, and the court stated further: “ . . . The fact that the plaintiff may, in a proper case, rely on this rule does not mean, however, that he is excused from proving negligence, for there is no exception to the rule that one seeking damages for an injury caused thereby must establish that negligence by a preponderance of the evidence. ...” The jury in this case was instructed that the burden was on appellee to prove the negligence of appellant by a preponderance of the evidence. Under the evidence in this case, we think the rule of res ipsa loquitur, the thing speaks for itself, did apply, *427 and that an instruction on the subject was proper. The instruction given by the court was taken bodily from California Civil Jury Instructions, No. 206 b, p. 321, and correctly states the law applicable to the facts in this case. Further, the giving of this instruction under the issues in this case was in accordance with the rule which we adopted in Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 Pac. (2d) 168. We held in that case where specific negligence was alleged that the doctrine of res ipsa loquitur was applicable as an aid to the proof of those specific facts. Appellant’s sixth assignment is directed at an instruction as to the standard of care to be used to measure the conduct of a boy twelve years old. We find that this instruction is taken verbatim from Reid’s Branson Instructions to Juries, 3rd Ed., Vol. 3, Sec. 1280, p. 587. The court in another instruction directed the jury to take into consideration the age and mental maturity of the appellee, and his ability to comprehend the danger in which he found himself. We think that when these two instructions are considered together, they are within the rule laid down by this court in the cases of Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 46 Pac. (2d) 1068, and Southwest Cotton Co. v. Clements, 25 Ariz. 169, 215 Pac. 156, for negligence cases involving children. Appellant’s requested instruction No. D-9 presented in his eighth assignment of error, was properly rejected, if the doctrine of res ipsa loquitur applies to the case, and we hold that it does apply. The proposed instruction reads in part as follows: “You are instructed that negligence is never to be presumed . . . .” In cases where the doctrine of res ipsa loquitur, as defined by our court, applies there is a presumption or inference of negligence which the defendant must overcome. The rejection of the proposed instruction was not erroneous. *428 The ninth assignment alleged as error the failure of the court to give appellant’s requested instruction number D-12, which reads as follows: ‘ ‘ I instruct you that if in your deliberations and from a consideration of all of the evidence you find yourselves unable to arrive at a verdict, except by guessing, speculation, or conjecture as to whether defendants were negligent in the respects charged in the corn-complaint, and whether such alleged negligence, if any there was, proximately caused or concurred in causing, plaintiff’s alleged injuries, then in such event your verdict should be for defendants because the law does not permit a verdict to be returned against a defendant when the foundation of such verdict is guesswork, conjecture or speculation.” This proposed instruction is purely cautionary, and we see nothing in the record that furnishes any substantial basis for it. In the course of its instructions to the jury, the court said: “Your verdict must be based solely upon the evidence received and the law as given to you in these instructions.” The rule on cautionary instructions is stated in 5 C. J. S., Appeal and Error, § 1775, at page 1164, as follows: “The giving of cautionary instructions stands on a different footing from the giving of instructions on the law of the case and is a matter very much within the discretion of the court. It is generally held that their refusal cannot ordinarily be assigned for error.” The refusal of the court to give this cautionary instruction was not error. The last assignment was that the court erred in refusing to grant appellant a new trial. The grounds presented to the lower court in support of such motion were essentially the same as the grounds stated in the first nine assignments in this case. The motion was properly denied. *429 The acts of the driver of the car are imputable to his principal, the appellant herein, when acting within the scope of his employment. When the entire circumstances are taken into consideration, it is doubtful if the jurors ever arrived at the point where it was necessary for them to consider the questions of contributory negligence or last clear chance. They might well have arrived at the conclusion that the driver was guilty of primary negligence continuing from the last stop on Lincoln Avenue all the way down Whipple and Euth Streets to the time and place of the accident. A careful review of the entire record in this case convinces us that substantial justice was done between the parties, and that the record shows no reversible error. Therefore, the judgment of the lower court is affirmed. STANFORD, C. J., concurs. MORGAN, J., being disqualified, the Honorable J. W. Faulkner, Judge of the Superior Court of Mohave County, was called to sit in his stead.