*1 answering failure to file an brief is a on part appellees confession of the Nelson, reversible error.” Nelson v. 215, 217, 953. Reversed and remanded with instructions Phoenix, appellant. Hughes, Hughes & to enter order for an a new trial. appellee. Phoenix, for Brash, & Brown
UDALL, J., and STRUCKMEYER, V. C. BERNSTEIN, Chief J., concur. Justice. for in- a suit plaintiff
Appellant A verdict son. his minor
juries at the the defendant in favor
directed appeals plaintiff case plaintiff’s
close
verdict.
entered
judgment
from the
lection. however, the trailer testify, No. 6763. able faulty trailer because of hitch loose broke Supreme Court of Arizona. report contained an accurate En Banc. trailer hitch.
condition Feb. 1963. favored us with has not brief Appellee Rehearing Denied March submitted for case has been de- 7(a) Rules of Rule under cision Court, 17 A.R.S. We re-
Supreme held that:
cently
“ *** issues where debatable appeal, by the we will
raised assume
1QO
Moore, Killingsworth Kaplan, Romley, & appellant. Phoenix, for Evans, Ralph Kitchel & and J, Jenckes Lester, Phoenix, appellees. 1Q1 gers con- STRUCKMEYER, in the automobile either caused or Justice. tributed to the collision. Alires B. Cecilia This action de- nine at crossing of The which the accident oc- of the estates administratrix estate incorporated curred guardian of the within the limits relatives and was ceased heavily appeals City Phoenix, Alires, of a minor. She and was Crucita crossing traveled, car on judgment average from a entered one this Court every Pa- Reynolds The Aluminum in favor of the Southern 15 seconds. verdicts and both Company, corporation, Plant bordered the Southern Pacific Delaware cific E. Priest, Thirty-fifth engineer and Belton Tracks De and Avenue and em- Carl W. fireman, ployed employees 1,500 persons. defendant approximately Hodges, shift,' Around midnight, change company. during particularly traffic heavy. was The train 16th, 1956, approximately On December stop, Yuma, previous Arizona, at its automobile P.M. a 1937 Chevrolet 11:50 forty about and It one hour minutes late. Massey by one collided driven John speed being operated at a miles of 79 Company’s engine Pacific Southern crossing. Thirty-fifth an hour at the crossing passenger train at the Golden State Crossing was indicated Avenue the custo- Ave- Thirty-fifth of defendant’s and tracks mary wooden crossarm and a high- standard City nue, through boulevard in the way sign feet north of set 135 occupants thirteen Phoenix. Twelve of the Massey automobile was observed killed, sur- of the automobile were recklessly being prior driven to the accident. being Alires, months vivor Crucita an 18 struck the train on left It side at the old child. engine. Although rear the first the car complained Plaintiff individual pieces nearly "smashed disin- in a operated defendants Golden personnel State the train tegrated,” were unaware wanton, manner negligent reckless and the accident train continued to Company that defendant Southern Pacific the Union Station downtown Phoenix. failed recklessly wantonly, negligently of the evening the course During before the warning adequate Massey provide protection and the male accident members of traveling family public Alires observed members drinking denied from the Thirty-fifth Massey Blood taken body Avenue. Defendants beer. analyzed that the an content of affirmatively alleged per alcoholic .23 negligence and eye passen- cent.1 There were witnesses to and adult of the driver intoxicating. per presumptively blood is A.RfS. 28-692. alcoholic cent content 0.15 *5 thereby not his is obstructed does afford seat and view (cid:127)accident the evidence n any A why Massey to or his control interfered driver certain clue as with. n vehicle Thirty-fifth or prohibited with three traveling driving south on his Crossing at if persons more in the front seat neither at the Pacific Avenue Southern view is nor control interfered time of collision. obstructed his with. many of assignments presents . Plaintiff so matters which raise of error some imposes duty B a on a Subsection manifestly prejudicial as clearly and passenger not to obstruct the driver’s view require granted. a trial be new or interfere his It does not with control. requested instruction #4 ^Defendants’ passenger if riding forbid the driver’s By prejudicial.
palpably erroneous view is obstructed or his control interfered statute: person. Notwithstanding, another with a vehi- person shall drive
“A. No stating the lower court after the contents loaded, there or when cle when it is so in man statute instructed the this number in the front seat such' are ner : three, to ob-
persons, exceeding
as
“
* *
*
Therefore,
you
if
find
the view of
driver
struct
the automobile in
case
driven
this
or
the vehicle
as
front or sides of
loaded,
so
or
when
when
over
with the driver’s control
interfere
per-
front seat had such
number of
driving
of the vehicle.
mechanism
three,
exceeding
sons
that the view
in
passenger
a vehicle
“B. No
shall
the driver was obstructed to the front
position as to interfere
in such
ride
automobile,
or
sides of
or was
view ahead or to the
with the driver’s
loaded
so
as to interfere with the driv-
sides,
to interfere with
his control
driving
er’s control over the
mechanism
driving
mechanism of the
over
automobile,
you
I instruct
vehicle.” A.R.S. 28-893.
all
in
are
adults
the automobile
law,
you
negligent
a matter
if
A of the
Subsection
statute im
find that such
was one of
duty
operator
on the
poses a
of motor
bring
the factors which contributed to
respects : (1) Not
in three
drive
vehicle
collision,
about
there can
so
his vehicle is
loaded as to ob
when
recovery on account of the deaths of
view;
(2) Not
his
to drive
struct
when
(Emphasis supplied.)
said adults.”
is so loaded as to
his vehicle
interfere with
control;
instruction,
(3)
therefore,
Not to
erroneously
his
drive when
there
jurors
people
more than three
find all
directed the
the adult
front
guilty
opinion
passengers
was'possible
law
as matter
of the court
statute,
if the
under
be con-'
driver violated
the evidence and could
:
passenger
one
interfered
sidered
them.
consider
We
-
giving
portion
driver’s
or control of the vehicle.2
view
the instruc-
*6
A
might refuse
prudent person
reasonable
tion to
prejudicial
have been
error.
”
* *
*
to ride
statute
violating
Kirby,
with a
this
Corporation
driver
v.
Butane
but he is
of law
negligent
supra,
281,
not
a matter
as
66
at 332.
Ariz. at
P.2d
if he
personally
does not
interfere with
quoted
We
emphasized
holding
also
our
and
be
driver’s control or view. He would
542,
in
Whiting,
Seiler v.
52 Ariz.
negligent only
the facts
because from all
452, that:
and
that he
jury might
circumstances a
find
‘“ * * * It
that the
sufficient
ordinary
to
own
failed
exercise
care for his
facts
might
are such that
have ex
it
safety.3
.
appear affirmatively
isted. It
that
must
prejudicially
The instruction was
mis-
* * *
a
Corpor
it did.
Butane
beyond
leading far
its erroneous contents as
282,
Kirby,
tion v.
supra,
66 Ariz.
a statement of the law governing the case.
timony indicating brakes, defective indicate where in the automobile soever to reading of this jury statute to the The passengers riding.4 the various misleading might have induced permitted jury speculate; instruction them to believe that such state of facts in whether the driver’s view was (1) as to 2. the trial of this Since case we have held loading Dillabough of a motor vehicle. v. imperative directives such County, as “there Okanogan 609, 105 Wash. recovery” can violate legal the Arizona presumption P. 802. where Constitution, 18, 5, Art. Sec. A.R.S. and contrary is, are no facts to the there Coyner prejudicial. Crop course, person complying Dusters that a with Marsh, 371, 708; v. Cyclopedia Blashfield, B. law. See 9 Layton Rocha, 369, 90 Practice, 6070, P. Law and of Automobile 444. 2d passengers p. Massey in 616. 3. Anno. 44 A.L.R.2d arranged be so vehicle can in fact “Overcrowding riding motor vehicle or operation driver’s vision and his position unusual affecting thereon as placing not be interfered would liability injury damage.” or women and two three smallest has It been stated that there is no in- in the front seat with children the driver. ference of from the mere over- and, quired responsibil- or sides assume the same
fact obstructed to the front driver, ity operation loaded so its as the he (2) whether the automobile was plain warnings control cannot utterly disregard as to driver’s interfere with the and, danger one imminent to warn (3) all or whether fail duty pas- or his control driver. It is the of a passengers interfered with senger automobile, of this he in an where the circumstances vision. Under ought survived knows or know the same passenger case where no adult explanation as is about track to to cross a railroad consequently there is no approach- observe happened, whether trains are why to how accident you permit, ing. by preponderance in- If find instruction more than did vited, adult evidence that the deceased speculation. The mere submission duty passengers failed in their the court constituted direction proxi- respect, of facts and that failure there state suc.h mately to cause applied caused contributed which the instruction —facts collision, recovery could can of law there be no a matter (Em- account of deaths.”6 said be found.5 phasis supplied.) {5, of the court below error *7 The 6] con again jury the could draw no Here by de- compounded giving the grossly speculation. it to clusion unless resorted read- requested instruction fendants’ #15 things speculate that Among it could other ing: ought to have passengers the adult knew or (1) crossing and known of the railroad although that a “You are-instructed ap to trains were automobile is not re- failed observe whether in the passenger disregard plain warnings any imagined terly Moreover, state of facts im- apparent jury neg- danger, to could conclude more Mm the minent which pas- driver, of law of to and fail to ligence the the warn as a matter than required of the engers same conclusion as The omission ital- latter.” passenger greatly enlarges duty if a rode the- for driver clause the' icized t!o position passenger. with to interfere a a such in duty imposing a or then the view control second sentence driver’s The operating “ought in is in the automobile know” direct contra to driver holding in law. our Southern Pacific violation diction Mitchell, conceptually 50, attack Ariz. does not v. Railroad Co. 6. Plaintiff expressly disapproved pass we can not it but where we instruction arbitrarily making might by, as inferen- be taken it the since of an instruction passenger tially duty approved. to look and of a listen rescript phrase approaching is The first of our trains. The sentence Humphrey Atchison, “ought in T. & know” carries v. the connota statement looking listening Ry. Co., F. and S. tion way passenger an essential element deleted. can is the know. “may passenger that not ut- said We proximate to warn same er-‘ observing failed cause rests (2) if proaching or predicate. such failures roneous (3) and that thereof the driver collision.7 proximately caused the properly jury The court instructed
that: jury that court instructed the proximate injury “The cause of an be none of the children “can found is that and cause which in natural contributorily negligent” further been sequence, any continuous unbroken favor if must be in their that its verdict efficient, cause, intervening produces any] defendants negligence “the [if injury result and without which the proximately con proximately caused would not have occurred.” injury.” Defendants to cause tributed jury could have found that the defend- re from this instruction argue negligent, example op- ants were as for in favor of the defendants turning verdicts erating high dangerous the train at sole, proximate cause of jury found speed, rate but that the accident would negligence to be the accident driver’s irrespective speed have occurred negligent that the defendants were not pas- because the driver’s asserted and adult negligence did not cause con or their sengers’ negligence failing to see and accident, tribute cf. Jimenez failing produced injury to warn without Starkey, P.2d 83. Defend result would have occurred. argument jury’s finding as to the ants short, In could have believed that proximate cause the sole accident passengers’ negligent con- driver’s negligence dependent driver’s was the by speculation duct as decided from the er- validity, assumption upon, for its instruction roneous was the efficient in- pas of the driver’s or the adult the issues tervening proxi- force which alone correctly sengers’ sub of the accident.8 mate cause jury. jury erroneously If the mitted part, their con assumed It is the established law of this negligence being proof as to the sole burden of plain- clusion state that the of a clanger charged jury: that all these con- 7. The real 8. The court may contrary previously you, to the truth. I have instructed clusions “As *8 possible you the driver either saw that find that the driver of the car It is passengers any respect negligent the adult in and train that the such prowimate negligence the train and warned was the sole and of them saw some collision, plain- but that at the last moment of the none of the driver causé the your pro- may failed or that over the recover and the brakes tiffs verdict shall passengers defendants, regardless the driver at- for the tests tempted of to beat the train to the the other adults the car whether negligent (Emphasis supplied.) or not.” there, alu- , ticular bad all those contributory crossing is the negligence tiff’s always Anderson, crossing on employees Ariz. minum defendant. Martinez v. always allowing, crossing, that we watch instruction and 237. The for does, speculation crossing.” The court excluded as it trial substitution fire- plaintiff Hodges, proof cross-examination of of facts denies to man, any testimony like- con- proof. It is as to he of whether benefit of burden af- prove Thirty-fifth Crossing their sidered Avenue wise defendants’ burden particularly negli- plaintiff’s crossing.9 bad of allegation that The exclusion firmative requires proximately testimony caused the accident. Un- the fireman’s us to ex- gence is holding there amine our der the and the instruction recent in Wolfswinkel statute involving Company, situation Pacific Southern imaginable factual authority in the car negligence any the adults for it is of of rationally rely support can be at- ruling there which defendants to which proximate cause court. tributed the sole may jury conclude It is what a accident. plaintiff’s cause of action in that makes instruction from an erroneous both negligence embraces the conduct of prejudicial. the instruction violating defendants as certain statutes instruc- defendants’ erroneous Because of perform the failure of the defendants to for possible it was tions duty to common law use due care their incorrectly driver’s both determine all circumstances of the under case. negligence and passengers’ the adult (cid:127)and negligence, knowledge common law In sole acts to those ascribe duty of which arises is an es facts out can accident. We cause proximate liability. element to fix sential instruc- the erroneous only conclude “Fundamentally, duty person of a jury’s prompted the ver- may tions liability care and his neg- use dicts. depend upon the tendency ligence n acts under opinion that certain his circumstances as also We are testimony erroneously they are known or should be known to relevant trial, of liability The foundation Prior to the him. excluded. prejudicially knowledge inquest, Hodges, defendant what at the —or “ * * * to be the law same par- thing: deemed fireman, is a testified: admissibility question examination trial hibited testimony testimony aspect Hodges’ elicit would this was in this crossing.” “particular pre-trial bad at which conference raised at judge specificallypro- seemingly . the trial
107 n opportunity recognized knew of the extra fendants by of reason- the exercise jury crossing the of the knowledge— hazardous nature acquire diligence able to on reasonably negligence infer results could subsequently peril (cid:127)of the which in either stated, part corporate of defendant Concisely injury. in care, its trains at a permitting operation taking presupposes duty to failing speed per hour or knowledge 79 miles presupposes this in turn devices, or provide adequate warning held more cannot be equivalent. A man its coupled danger, with Knowledge of responsible theory both. knowledge omission failure to act on that act or injury for an from an manner, he is the:es- prudent reasonable appears that part on his unless ** plaintiff’s complaint. fore- sence *. The knowledge had emphasize principles, going which testimony of implied, as While the excluded
knowledge, actual or
care,
bad
concerning
“particular
fireman
duty
due
to use
foundation of
au-
character”
by
crossing
conclusion
generally
his
adhered to
”
* * *
opinion,
and an
Am.Jur., Neg-
not- fore
its admission is
38
thorities.
closed
an
23,
where it is relevant to establish
pp. 665-666.
ligence, §
other or other
in the
issues
case. Double
Tuyl,
whether ordinary Where, here, testimony care was but as. action, determine whether defendants’ conduct elicited from a party to is, manifestly reached the dis- level of wantonness —that reasons supporting the rule appeared. whether the being operated train testimony could Since the a reckless judg- supplant indifference the lives been jury’s used to safety of con- ment but using crossing crossing others the. the nature *10 sidering special knowledge meas- could safety the want of have been used to establish and wantonness, ures. was little rebuttal or no ^ likely possible the purpose of the testimony could properly limited been In Wolfswinkel Southern by a cautionary instruction. conclude We Company, supra, testimony the an Pacific of testimony the improperly was excluded. engineer for railroad assistant division Any imputations arising from Wolfswinkel properly held excluded offered to where to the contrary expressly disapproved. “required either crossing, establish that the wigwag signal light”. a or blinker foregoing brings a us to further applied is that principle to be where the ground of reversible error. court The trial intelligently described to the facts can be plaintiff’s request refused for an instruc- by they and understood them and jurors tion a negligence on the effect of as wanton opinion a reasonable for them form can contributory bar negligence. Defendants experts selves, opinion of will be re again argue that the verdicts establish that Evidence, 781, p. Am.Jur., jected. jury decided the issues on the basis of in two con support fundamental finds its It non-negligence defendants and that testimony in First, opinion its broad cepts. contributory bars since wántonness upon province of encroaches sense est asserted error the failure negligence, the for themselves the to determine jury aca- on wanton instruct Second, a case. facts of ultimate light prior expressed of our demic. In guise under the may a witness call litigant argument defendants’ rejecting conclusions testify opinion to his then as expert an of might which facts an examination opposing litigant play requires fair finding of becomes support wantonness opinion by calling such rebut necessary. allowed to opposition. testify This experts to other Avenue was within the in- Thirty-fifth experts by among in trial results City corporated of Phoenix limits compounds the things mischievous other traveled, particularly heavily around prov encroachment aspects Reynolds when midnight Aluminum Reynolds changed shifts. The Plant jury. Plant ince Bryan v. South- Thirty-fifth ing Avenue and the of such an instruction. both. bordered Company right-of-way. 253, 286 Company, Pacific ern Pacific Southern working areas and outside were 761. evidence parking plaintiff’s If the truth of the Its lights jury assumed, illuminated overhead so is brightly possible then it position of driver degree that a motorist in the high believe that there was into the look observing probability for a train would would harm substantial State lights plant area. The Golden inevitably position persons result to in the min- forty approximately hour and one passengers Massey automobile. in the traveling stop late at last and was Hence, utes its prejudicial error was committed customary 79 miles an than hour. Other in failing to effect instruct the on the tracks, wooden the railroad crossarm near contributory of wantonness aas bar to the signals there were no maintained passengers partic- of the adult wigwag railroad such an automatic ularly under the this case circumstances of motor aof attract attention of a driver contributory neg- defendants asserted approaching possibility vehicle to of an ligence riding in the with an intoxicated was, night. There train. It was winter’s driver. probability accordingly, high degree plaintiff’s objection Over the the trial vehicle approaching that the windows on an court admitted into evidence a certificate watching *11 up. would be The fireman was the Secretary Corporation Arizona south, vehicular travel approaching Commission that he find a was unable to opposite Massey vehicle direction to the regulation of at the commissionin existence
direction of travel and on the side governed time of the accident which the vehicular engineer. crossing, At this speed Ave- Thirty-fifth trains at the travel, auto- part, other consisted of two nue Crossing required Pa- or the Southern approximately mobiles, which crossed one Company cific flagman, gates, to maintain a cross- and which one hundred feet the other signals pro- automatic warning or other or approximately fifty ed ahead feet re- tective devices. thereafter Defendants train.10 quested objection charg- and the court over jury: ed the determining Court This that the statutes “You are instructed refusing to trial court erred in
whether the of Arizona of the State regulations negligence, must assume on wanton instruct require that the defendant did not giv- justifying truth of evidence past until or or bell whistle passenger vehicle testi- train’s in the latter A10. crossing. of his automobile the windows fied that up hear the did not rolled he were - Company Southern Pacific maintain a determining they negli- whether were watchman flagman or or automatic gent under common law rules.” signals or gates cross- at railroad
ing,
op-
nor that
its
should
trains
be
Common law
is the
any specified
speed
erated at
rate of
failure to
prudent
act
aas
reasonable and
over
crossing.
said
person would act
in like circumstances.
Salt River Valley
v.
Water Users Ass’n.
requirements
“The
of the statutes
Compton,
“Neg
HI failure and in conclude defend exercise reasonable care jury, retrospect, might m reasonably and rea- addition must exercise act that defendants did or did not ants upon sonable care to learn whether those circumstances. prudently under the using they rely whose in fact conduct are instruction Defendants’ # Company such care. Bragg v. Mobilhome duty the fire by court on the given of Los Angeles, Cal.App.2d aspects. man be criticized in two is to P.2d 424. testimony the fireman uncontradicted judgment For the foregoing reasons the Massey vehicle. that he never saw the of the court direc- below is reversed with Hence, the fireman’s as to the instruction tions to enter an order for a new trial. that the driver of duty after he decided stop had Massey did intend not vehicle LOCKWOOD, BERNSTEIN, J.,C. The instruction application to the case. concurring. J., too late to that, the time it was
states if at of due by the exercise avoid the collision JENNINGS, concur- (specially liable
care,
not
be held
defendants
Justice
ring).
The in
the collision”.
“failing
avoid
followed,
relieve
struction,
literally
would
I concur in the result of this
but I do
case
prior
responsibility
the defendants
majority
agree
trial
excessive
conduct in the use
negligent
testimony
improperly
court
excluded the
such
speed
failure to
measures
or the
use
Hodges (the
as to
fireman)
defendant
special
protect
warning devices to
Thirty-fifth
Avenue
character
n crossing.13
pretrial
Hodges
deposition
In a
testified
given
Defendants’ instruction #11
“ * * *
midnight
employees
as
near
right to
"by
court
their
concerning
Reynolds
chang-
Plant
Aluminum
are
a railroad
of that
approaching
sume that a motorist
they
going
are
to and
ing
care
reasonable
shifts there
crossing will exercise
n only partial
I
work,
particular
and at that
time
princi
legal
from
statement of the
crossing”.
Again
qualified
bad
considered
ple applicable.
It should be
“ * *
n clear
inquest Hodges testified that
rely
pretrial
in order to
statement
all
another,
crossing
bad
there
particular
that is a
reasonable care
the exercise
n defendants
always
employees
plant
free
aluminum
those
must
themselves
contributory negligence. Roll
plaintiff’s
portion
in effect
instruction
13. This
Morgan,
doctrine to
man v.
1196,
chance
the last clear
invokes
negligence.
32 A.L.R.24
of their
defendants
relieve
application
to a
has
The doctrine
*13
crossing on
always
that crossing, and we
were
crossing
said
inspecting
the
for
watch
crossing.”
trial court ruled
purpose
The
determining
electric
what
of
portions
the
Hodges’
italicized
tes-
signals
of
warnings,
or other
any, would
if
timony
they
were
con-
inadmissible because
be required to make the Alma School
opinion
stituted an
as to the
of
crossing
character
traveling public,
safe for
crossing.
was admissible in evidence, as an ad-
mission
railroad
that it
company
of
plaintiff
The
contended that such testi
was a
crossing, and
hazardous
for
mony
against
was admissible as an admission
purpose
showing the railroad com-
of
interest
party
respect
with
con
to the
pany had knowledge
fact.”
dition of
railroad crossing
Plaintiff
.
(Emphasis
302, 309,
mine.)
Ariz.
cites Wolfswinkel
Pacific Com
v. Southern
447,
305 P.2d
pany,
for
(1956)
though valid, not there existed a but contrary to the “Despite recitations purpose re for could been which it have is writings, party’s statement some Moore, ceived. Standard of Cal. v. Oil Co. an inadmissible as rendered generally Spencer 251 v. (9th F.2d 1957); 188 Cir. an in the it is admission 287, Corp., Bath Iron 37 form of Works 140 Me. There is vir- opinion conclusion. ; Goebel, A.2d (1944) 174 State v. 36 Wash. authority to the con- tually no sound 367, 2d Wig- 218 P.2d (1950). See also exception instance trary; is an more, Wigmore p. 17, Evidence § form an is in an admission where (an offer of a fact for inadmissible an respect fault and is to opinion with purpose A properly excluded, though the occur- and relates to given after the same fact would have been admissible litigation arises.” from rence purpose B) Udall, Arizona Law of for Ariz. 311— mine.) 81 (Emphasis Evidence In the instant case § 447, 454. testimony purpose for offered showing condition of the In majority at bar state that case In the my opinion it was inadmissible for that testimony could not have “the been although purpose and the trial court did not err jury’s judgment supplant the as to used though may excluding it even the evidence crossing” it “could the nature pur have been admissible for some other knowledge and wan- to establish used been pose. improper To rule trial that the court testimony sought to be since tonness” ly this is placing excluded evidence an oner action party to the elicited was upon the court burden ous determine testimony was that “the concluded therefore is offered, evidence time whether it is view They base this improperly excluded”. any purpose. The trial admissible court Admissibility Multiple “Rules on the by excluding the evidence for risks reversal nonadmissibility “the stating that Evidence” when there yet exists purpose offered does purpose for one fact an evidential which, upon it would be ad basis another purpose its admission prevent not However, missible. rule is this proper.” otherwise impute negligence of why with, terfered reason yet
There
another
upheld.
single
passenger
offending
the driver or a
the trial court should be
ruling of
employee
all
law.
an
of the other
a matter of
of admissions of
adults as
Declarations
agree
has
For that
that the case
after an event or transaction
reason alone I
made
utterances)
completed
must be
(and not excited
remanded for a new trial.
been
employee
although
against
admissible
that,
However,
agree
I cannot
employer even
against
are inadmissible
record,
proper
incorporating
instruction
though
explanation
an act
made in
provisions of
would
A.R.S.
28-893
§
employ-
event which
itself within his
unlawfully permit
speculate
Neer, 46
authority.
ment
v.
Brooks
Moreover,
that,
agree
to the facts.
I cannot
v.
Benton
(1935);
P.2d 452
statute,
under
can
our
there
be no inference
(1919).
Regeser, 20 Ariz.
H5 three, In case there was no direct evidence persons, exceeding this number of * that persons there driver were more than three obstruct the view of 28-893, (Emphasis occupying the death ve- A. front seat of the A.R.S. subd. hicle. undisputed, however, It is that thir- added.) prsons teen were crowded car. into the more presence I do not that the assert majority say jury that a conclusion aof seat persons than in the front three that the un- statute would be was violated per violation se a motor vehicle is permitted speculation. rule ignores the This jury can However, my in view statute. in this that state an inference can be based with reasonably infer that interference upon an inference, case, in a civil whenever control occurs driver’s view or is established to the exclusion first inference children, persons, including than three more every other York theory, reasonable New vehicle. a motor front seat occupy the Life Ins. McNeely, Co. v. 79 than more Thus, presence of whenever P.2d 948 (1938) ; Griffin, Buzard v. 89 shown, is front seat persons in the three 42, 358 P.2d (1961). 155 given Here the jury in the terms proper to instruct it is fact is that car, thirteen people occupied the decide statute, permit and to the first inference that three more than three presence than of more whether the occupied seat, the front and the in- second of view persons resulted in obstruction ference, thereby based first, that control, consequently interference the driver’s view con- was obstructed or his trol statute. Warren v. violation in- in a interfered with. If the first ference every excludes (1942) other reasonable S.W.2d 51 Ark. Hale, theory, this permitted. chain of inference is position authority under statute also Lee our own.2 See identical theory alternative in- (1958) N.W.2d Minn. Smith, 253 ference that more than persons three oc- statute, identical evidence an where, under cupied the front seat persons ten children, adults two were two there piled deep three in the rear passenger truck, age, the cab of years of and 8 compartment of a small sedan, 1937 model shuffling around as of some plus evidence persons while lounged three in the front adjusted themselves in their occupants I seat. find this an unreasonable theory, justify sufficient held especially seats in view of the facts that several the statute violated. the adults had finding drinking, been *16 having is a section of the 28-893 Uni- this act should A.R.S. other states 2. Regulating High- persuasive, especially Act Traffic on form the ends of be uniformity may ways. Therefore constructions of courts be served. just prior through stoplights vehicle ran two train, and that
to the collision with the
n effortwas made al stop the train be seen headlight could
though oscillating its reached yards hundred before
for several per presumption the face of obeyed the law vanishes in
son circumstantial evidence that
(cid:127)compelling Helton v. being In violated. Cf.
law Commission,
dustrial find, properly could (1959). appearing record, in this facts
from the of the death vehicle was violating driver 28-893.
A.R.S. §
L.G. WILLIAMS, Appellee.
Earl C.
No. 6587.
Supreme Court of Arizona.
En Banc.
Feb.