Lake Havasu Irrigation & Drainage District v. Dubois

OPINION SCHROEDER, Judge. Lake Havasu Irrigation and Drainage District appeals from a judgment entered against it in the amount of $125,000 and in favor of the plaintiff appellee after a jury trial. The judgment was for injuries suffered in a collision which occurred at an intersection in Lake Havasu City, Arizona. The principal issue on appeal is whether Lake Havasu was entitled to a directed verdict because the evidence did not sufficiently establish that conditions at the intersection were dangerous, thereby giving rise to a duty on the appellant as maintainer of the streets, to post traffic control or warning signs. The accident occurred on April 24, 1970, at approximately 11:00 a. m., in the intersection of Saratoga and Bluegrass Streets. The plaintiff was a passenger in the car driven by Billy Stapp, who was driving east on Saratoga at approximately 25 miles per hour. The other vehicle driven by Pamela Enhelder, was traveling north on Bluegrass at approximately 20 miles per hour. There was no stop sign posted for northbound traffic on Bluegrass, although there was a stop sign on the other side of the intersection for southbound traffic on Bluegrass. There was no sign of any kind warning either driver of the existence of the intersection. In fact, neither driver saw the other car until the collision in the intersection was imminent. Enhelder testified that she knew the intersection was there, looked both ways but did not see the Stapp car. Stapp testified that he did not know the [513] intersection was there and did not see the intersection. Evidence further established that Saratoga was generally considered to be a through street, and that Bluegrass was a feeder street. Several other streets feeding into Saratoga were controlled by stop signs. Mr. Stapp testified that he believed that he was on a through street. Evidence with respect to the physical conditions surrounding the intersection showed that there was a vacant lot at the corner, and that there was an arroyo on Saratoga approximately 225 feet before the intersection. Cars approaching the intersection on Bluegrass would not be able to see a car approaching the intersection on Saratoga while that car was in the arroyo. The driver approaching the intersection on Sara-toga would, while in the arroyo, have a limited view of the traffic approaching on Bluegrass. Testimony from investigating officers, however, established that the intersection was visible from any direction for at least 100 feet. The testimony of the experts was conflicting with respect to the degree of danger posed by the intersection. Appellant’s expert testified that the intersection was not dangerous, that curbs had been installed and provided “[cjontrast . and structural delineation of the presence of an intersection for an approaching motorist.” The plaintiff’s expert, on the other hand, testified that in his opinion the intersection was a dangerous condition and that it should have been controlled. The reasons for his opinion included the fact that drivers on Saratoga would assume that the street was a through street, that the empty lot at the corner made the intersection difficult to perceive, and that the arroyo on Saratoga constituted a blind spot impeding the view of both drivers. These conditions are well illustrated by photographic exhibits in evidence, and these photographs also suggest that the striping on Saratoga may have continued into the intersection making the existence of the intersection even more difficult to discern. We conclude, on a review of the evidence in a light most favorable to upholding the jury verdict, that there was sufficient evidence to permit the jury to decide whether the appellant was negligent in failing to post signs directing northbound traffic of intersecting traffic. The parties are in general agreement that the existence of an obstructed view of traffic at an intersection does not in and of itself give rise to liability. “[Tjhere is no duty of the city to maintain unobstructed-view intersections.” Slavin v. City of Tucson, 17 Ariz.App. 16, 18, 495 P.2d 141, 143 (1972). Failure to regulate traffic “by posting signs or otherwise” at a given intersection does not in and of itself give rise to an actionable breach of duty. Id. Rodgers v. Ray, 10 Ariz.App. 119, 125, 457 P.2d 281, 287 (1969). In Rodgers, however, the court recognized that evidence of conditions impeding drivers’ ability to perceive the existence of an intersection and of intersecting traffic creates a triable issue of fact with respect to whether the city breached a duty to warn of hidden dangers. The parties here do not dispute that the appellant for purposes of this litigation should be considered as a municipal corporation. As such it has a duty to warn of dangerous conditions on public roads. Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969); See also Stone v. Arizona Highway Comm ’n, 93 Ariz. 384, 381 P.2d 107 (1963), the landmark case in Arizona abolishing state governmental immunity for failure to maintain safe conditions on highways and reaffirming the prior Arizona Law that breaches of that duty by cities is actionable. Appellant relies upon Slavin v. City of Tucson, supra. In Slavin, the court affirmed a directed verdict in favor of the city on the basis of uncontradicted evidence that the existence of the intersection was obvious, and the drivers failed to proceed with an appropriate vigilance and reduction of speed. The court rejected the contention that the existence of two yield signs controlling traffic at two preceding intersections constituted a hidden trap. [514] The evidence in this case supporting the plaintiff with respect to a dangerous condition is much stronger. Here not only were there more than two other intersections controlled by traffic signs, but the plaintiff’s host driver testified that he believed that he was on a through street. There was expert testimony that the existence of the intersection was not obvious to drivers on Saratoga. The arroyo on Saratoga partially obscured both drivers’ view of the intersecting traffic. This case is, therefore, distinguishable from Slavin and properly went to the jury. For similar reasons, we reject appellant’s additional claim that the court committed reversible error in refusing to give an instruction, based on the Slavin situation, focusing solely upon whether the drivers could have avoided the accident. There is no question that the jury was properly instructed with respect to proximate cause in order to take the actions of the drivers into account. Appellants’ negligence “need not be the only cause of this accident.” State v. Watson, 7 Ariz.App. 81, 85, 436 P.2d 175, 179 (1967). Finally, appellant objects to the giving of an instruction which appellant claims permitted the jury to consider “custom and usage” of drivers on the streets to determine whether the appellant was negligent. The instruction itself is so unclear that it would not in our review have materially affected the jury’s deliberation.1 See Bush v. State, 19 Ariz. 195, 202-203, 168 P. 508, 511 — 512 (1917), holding an instruction non prejudicial because it was not understandable and was “a mere jingle of words.” In any event, in this case there was evidence in the record that drivers normally thought of Saratoga as a through street. The Arizona Supreme Court has approved the admission of evidence of custom or practice so long as the practice does not conflict with a statutory standard of conduct. American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 375 P.2d 364 (1962). There is no conflict here. Appellant has cited no direct authority in support of its position. We believe that the jury was entitled to consider the relation of the appellant to the customs followed by the drivers using appellant’s streets. We hold there was no error. NELSON, J., concurs. Footnotes [1] The instruction is as follows: The jury has heard certain evidence relating to the custom, practice and usage of the highways involved in this case. With regard to this evidence, you are instructed that custom, usage and practice cannot change or overcome a statute contained in the motor vehicle code, nor will it excuse a person from responsibility for a careless act when the custom is unsafe or unreasonable. However, the jury has a right to consider common procedures and usages by drivers in determining whether other parties to this case used due care. Whether a driver follows an established custom or practice or whether he fails to do so are factors and circumstances which you may weigh and consider with all the other evidence in the case in determining whether or not the legal standard of ordinary care was exercised. Under these rules the evidence of custom and usage cannot be used to excuse the violation, if any, of the right of way statute by the defendant Stapp, but you should give such evidence such weight you deem it entitled upon the other issues of liability.