COYNER CROP DUSTERS, аn Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants, v. W. O. MARSH; C. A. Clements; Gene Autry; W. R. Bimson; E. Ray Cowden; G. C. Taylor; M. T. Clemans, Trustee for W. J. Clemans, III, and Charles Clemans; W. J. Clemans, Trustee for Mark Twain Clemans, Jr., Barbara R. Clemans, and Virginia L. Clemans; A. Boyd Clements; Cynthia Sue Clements Tubbs; John Doe and Jane Doe, individually and as copartners doing business as Marsh Aviation Co.; Carl Nicholson; Leonard Pembertоn; Paradise Aviation Company, an Arizona corporation; John Roe and Jane Roe; and Fictitious Corporation, Appellees.
No. 6543.
Supreme Court of Arizona. En Banc.
June 29, 1962.
372 P.2d 708
Judgment affirmed.
JENNINGS and LOCKWOOD, JJ., concur.
Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellees Paradise Aviation Co. and Leonard Pemberton.
BERNSTEIN, Chief Justice.
This is a consolidated action in which Elizabeth Coyner, аs executrix of the estate of J. D. Coyner seeks recovery for the wrongful death of the decedent, and Coyner Crop Dusters, a corporation, seeks recovery for the destruction of an airplane. Briefly stated, the facts are these: Paradise Airport, an airport situated northwest of Phoenix, Arizona, at the time of the accident was composed of a number of intersecting graded runways used fоr light aircraft traffic in flight instruction and private flying. Along the extreme western portion of the field a landing strip had been graded for the exclusive use of crop duster pilots, and the various dusting companies using this runway had stacked their insecticide supplies near the northern terminus of this strip. On July 14, 1952, one Nicholson, a duster pilot new in the Phoenix area, flew a plane belonging to the defendant Marsh to the Paradise airport аnd inquired of the defendant Pemberton, the manager of the field, as to methods of operation on the duster strip. Pemberton told Nicholson that landings and take offs on the duster strip were from north to south or were “generally” from north to south. Nicholson then began his assigned dusting work, and had completed one flight prior to the accident. Both times while Nicholson was loading, Underwood, an employee of Coyner, landed frоm south to north on the duster strip, and loaded from a pile of insecticide adjacent to Nicholson‘s loading activity. Nicholson testified that he landed from north to south, but two of the plaintiff‘s witnesses testified that they observed Nicholson land from south to north himself. Nicholson also testified that he did not observe Underwood‘s landings. Before Nicholson completed loading the second time Underwood took off to the south аgain, stirring up a cloud of dust which covered approximately 1000-1300 feet of the crop duster strip. Nicholson waited until the dust had settled enough that he could see to a point where he thought he would become airborne and then commenced his take off run to the south. Before his plane became airborne, Nicholson collided with the aircraft piloted by the decedent Coyner, who had landed on the sоuth end of the crop duster strip and was taxiing toward the insecticide stacks. Coyner received burns in the fire that followed the collision and both aircraft were destroyed. Coyner died four days after the accident from injuries received therein.
In the trial below, judgment was entered upon a jury verdict in favor of the defendants, and plaintiff brought an appeal,
Since the original opinion in this case, this court has handed down its decision in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962). We there held that the trial court is deprived of the power to instruct the jury as to what its verdict must be, as far as the defense of contributory negligence is concerned, under the provision of our constitution which states:
“The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.”
Ariz.Const. Art. 18, § 5, A.R.S.
We have also held that the court may not instruct the jury that if it finds certain facts in issue to be true, it must find the plaintiff guilty of contributory negligence, Wolfswinkel v. Southern Pacific Co., 81 Ariz. 302, 305 P.2d 447 (1956), affirmed on rehearing 82 Ariz. 33, 307 P.2d 1040 (1957).
In the present case the following instructions were given over the objection of the plaintiff:
“You are instructed that if you find frоm the evidence that Mr. Coyner failed to exercise due care in ascertaining whether he could safely land and taxi his plane before he attempted to do so, and that such failure proximately contributed to the collision in the slightest degree, then it is your sworn duty to return a verdict for the defendants.” (Defendants’ Instruction No. 4)
“You are instructed that a person has a duty to exercise reasonable and ordinаry care for his own safety. If you find from the evidence that Mr. Coyner negligently placed himself in a position of peril by landing or taxiing onto the runway in question when that runway was obstructed by dust, if you find it was obstructed by dust, and that that negligence, if any, contributed in the slightest degree to the collision and his death, then you are instructed to find in favor of the defendants.” (Defendants’ Instruction No. 5)
These instructions, and Defendants’ Instruction No. 25, to be discussed herеafter clearly violate the rule established by the case of Layton v. Rocha, supra.
In the original opinion in this case, the court refused to consider the alleged errors contained in these instructions because in its opinion the plaintiffs did not direct the trial court‘s attention to the errors specified by stating distinctly the matter to
“* * * The one assignment which causes the court the most concern is the one with reference to the instruction on contributory negligence. * * *”
“Early in the trial, at least at a time priоr to the beginning of the settling of the instructions, the court requested that all counsel familiarize themselves with the principles of the Southern Pacific v. Bolen [76 Ariz. 317, 264 P.2d 401] case which is cited by the Supreme Court in both of the Wolfswinkel opinions. The practical application of the principles in the Bolen case was the basis of the largest area of disagreement in the settlement of instructions.”
It is quite understandable that this сourt would overlook such a buried indication of compliance with Rule 51(a) since the plaintiffs chose to shotgun every conceivable ground of error with some 75 sub-assignments of error. Such a practice makes it very difficult to separate the grain from the chaff. Nevertheless, in fundamental fairness, we must now recognize that the requirement of Rule 51(a) was satisfied by giving “the trial judge the benefit of counsel‘s best urging * * *“, Michie v. Calhoun, 85 Ariz. 270, 336 P.2d 370 (1959).
While the errors in the instructions quoted above are sufficient to require a retrial, we will consider other assignments of error for the benefit of the trial court at the new trial. Several of the matters discussed hereafter would not, standing alone, be prejudicial error, nevertheless their cumulative effect was to confuse the jury and deprive the plaintiff of a fair trial.
The plaintiffs have complained that many of the instructiоns given, including those considered heretofore, direct that the jury find for the defendants if certain facts are found without requiring a finding of every element necessary to such a direction.
The use of formula instructions which bind or direct the jury to find in
In this case the following instruction was given:
“If you should find from thе evidence that there were rules and regulations at Paradise Airport and that they were in effect on the date of the accident, and if you further find that the rules and regulations required dusting pilots to land and take off from north to south and that Mr. Coyner had knowledge of that procedure, if you find these things, then you are instructed that the defendants in this cause would not have had any legal duty to anticipate that Mr. Coyner would land in violation of the rules and regulations, and if you so find, your verdict must be for the defendants.” (Defendants’ Instruction No. 25)
If this instruction is based on the theory that where the defendant has no duty he cannot be negligent it is erroneous, because there was evidence from which the jury could find that the defendant Nicholson violated aspects of his duty to use ordinary and prudent care other than by failing to anticipate that Coyner would lаnd in the manner in which he did.
The jury was also instructed that:
“* * * Before any recovery mаy be allowed it must appear to you by a preponderance of the evidence that the party charged was negligent in one of the particulars alleged and that the negligence was the sole and proximate cause of the damages of the recovering party.” (Defendants’ Instruction No. 6)
This instruction, while it does not bind the jury to find for one party or the other, omits the qualification that recovery may be allowed where negligence of both the plaintiff and defendant contributed to the injury if the defendant‘s negligence was wanton and the plaintiff‘s only of ordinary degree. In the above form, the instruction could confuse and mislead the jury, especially in view of the unenlightening definition of “sole negligence” given by the court.3
The court gave an involved abstract instruction on concurring and intervening cause,4 and illustrated the relationship between contributory negligence and wanton
Notes
At the close of the instructions plaintiff‘s counsel stated:
“Mr. Z. Simpson Cox: I may not have my shorthand correct, but I believe the court said that sole negligence means that the only person responsible is the person who claims to have the right to recover.
“The Court: I think that is a correct statement. You can take exception to it.”
“If the original actor was not negligent but the secondary actor was, the question narrows down as to whether the secondary conduct was the proximate cause of the injury or event. There, of course, remains the question of contributory negligence if you think that is proper in connection with the particular fact situation. If the original actor was negligent, then, you have to consider whether the effect reasonably to be expected from that negligence was alterеd by an efficient intervening cause. Was the conduct of the second actor an efficient intervening agency which alone was the proximate cause of the injury, or was that later conduct merely a concurring cause and the conduct of such actor a proximate cause of the injury? As between these two possibilities the test is this: If the original actor foresaw or by exercise of ordinary cаre would have foreseen the probability of the conduct of the second actor and the probability that the original conduct plus secondary conduct would result in injury to a third person, then the conduct of both the original and secondary actors concurred in proximately causing that injury or event; but if these probable results were not thus foreseen or foreseeable and the immediate cause of the injury was the conduct of the secondary actor, then, it may not be held that the conduct of the original actor was a proximate cause.”
* * *
“Again, in the case of Miss Ackerman‘s lawsuit with Mr. Ryan and me, which was discussed a short time agо, purely hypothetical I assure you, but let‘s go back again and at this moment she has sued only me. If I was not negligent with proximate cause and if the sole negligence with proximate cause was hers, no recovery. If I was negligent with proximate cause and she was free from negligence with proximate cause, she would be entitled to recover. If we were both negligent with proximate cause and we have contributory negligence, no recovery. It we were both negligent with proximate cause but her negligence, while being contributory negligence, was ordinary negligence, while mine was wanton, then, she could recover against me. Again, we were both negligent with proximate cause and if our conduct was such that both of us were wantonly negligent, no recovery.”
jury, even though correct, are not favored in this jurisdiction, Glenn v. Chenowth, 71 Ariz. 271, 226 P.2d 165 (1951), and hyрothetical instructions are to be used with extreme care, having due regard to the danger of confusing or misleading the jury, Wolfswinkel v. Southern Pacific Co., 82 Ariz. 33, 307 P.2d 1040 (1957). We think the principles contained in the instructions in question can be conveyed to the jury with greater simplicity and clarity when the case is retried.
The plaintiffs also complain that certain evidence was improperly ad-
“If Miss Ackerman sued Mr. Ryan and me and she was negligent with proximate cause, Mr. Ryan was negligent with proximate cause, but I was wantonly negligent with proximate cause, her contributory negligence would not permit her to recover against Mr. Ryan, but because my negligence was wanton and hers was ordinary negligence, she could recover against me.
“The same general principles apply, Ladies and Gentlemen, in reverse in connection with the counterclaim, that is, the claim of Mr. Marsh against the corporation Coyner Crоp Dusters and Mrs. Coyner as executrix, and I won‘t again go back over and over.”
While other assignments of error made by the plaintiff suggest possible merit, the absence of discussion in the briefs of many of the multitude of assignments precludes full consideration of the points raised.
The case is remanded for a new trial.
STRUCKMEYER, J., and W. C. TRUMAN, Superior Court Judge, concur.
NOTE: Justice LORNA E. LOCKWOOD, having disqualified herself, the Honorable W. C. TRUMAN, Judge of the Superior Court of Pinal County, Arizona, was called to sit in her stead and particiрate in the determination of this appeal.
JENNINGS, Justice (dissenting).
For the reasons expressed in the original opinion in this case, 90 Ariz. 157, 367 P.2d 208, and in my dissenting opinion in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444, I am constrained to dissent.
UDALL, V. C. J., concurs in this dissent.