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Starr v. Campos6/14/1982
This appeal is from a judgment in favor of the defendant-appellee in an action for wrongful death arising out of a collision between a truck and a small car. The appellants contend that the trial court erred in refusing to instruct the jury that wanton and wilful negligence on the part of the defendant would preclude reliance upon a defense of contributory negligence. They also claim error in the court's refusal to instruct on punitive damages and in the admission of certain expert testimony based upon a computerized analysis of the accident. Because we agree with the first of the appellants' claims, we reverse.
In assessing the necessity of jury instructions we must view the evidence in the light most favorable to the instruction's proponent. e.g., Schneider v. Macari, 111 Ariz. 483, 533 P.2d 540 (1975). If there is evidence tending to establish the underlying theory of the instruction, the instruction must be given and any conflict between that and other evidence must be resolved by the jury. Nichols v. Baker, 101 Ariz. 151, 416 P.2d 584 (1966); Correa v. Curbey, 124 Ariz. 480, 605 P.2d 458 (App.1979).
The appellants' son, Stephen Starr, was killed when the Volkswagen he was driving collided with a 12,000 pound truck, driven by the appellee, which turned left across the Volkswagen's northbound path. The collision occurred at about midnight, May 5, 1979, at the intersection of South Houghton Road and East Irvington Road on Tucson's far southeast side. The roadway there is straight for miles, but ascends slightly to the south (the direction from which the Volkswagen was traveling) to a hillcrest about 900 feet south of the intersection. The Volkswagen was traveling with its headlights on at a speed in excess of the legal limit. The appellee started his left turn onto a dirt "extension" of Irvington Road about 100 feet north of the intersection. Despite the nearly 1000 feet of unobstructed roadway, the appellee did not see the approaching Volkswagen until it was about 50 feet (one second) away, too late to avoid the collision. Stephen Starr and his passenger were pronounced dead at the scene.
The appellee was given a breathalyzer test after the accident. The parties stipulated that the result of that test, showing the appellee's blood to contain 0.12% alcohol, was correct. In addition, there was evidence that the appellee is blind in his right eye and therefore lacks both peripheral vision on that side and normal depth perception. The deposition of an ophthalmologist read to the jury at the beginning of the trial, indicated that alcohol would further suppress the appellee's vision and that it was generally unwise for a person with only one eye to drive at night.
One whose gross or wanton negligence proximately causes injury to another may not assert the other's contributory negligence as a defense. e.g., Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413 (1967); Bryan v. Southern Pacific Co., 79 Ariz. 253, 286 P.2d 761, 50 A.L.R.2d 1 (1955); Restatement of Torts 2d § 482(1). The evidence set forth above raised the issue of the appellee's gross or wanton negligence for jury determination.
On these facts, the controlling case is Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977). There our supreme court held that evidence that the defendant was driving while intoxicated, and that his intoxication was a proximate cause of the plaintiff's injuries, was suffici
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