"Mr. Dougherty: They talk about a sidewalk out there. The testimony there is the remains of one, an old sidewalk that has been grown over with grass, that had been flooded"Mr. Struckmeyer: I object to that, if your honor pleases. fact, appellee was attempting to cross the the remarks of the court in answer to the road, her contributory negligence was no objections of counsel for appellant (Mr. longer a question of fact for the jury, but Struckmeyer) in the argument to the jury: one of law for the court. The assumption that appellee was attempting to cross the road was founded, however, merely upon the evidence of appellant and his witnesses that when struck by the automobile appellee was facing in a southwesterly direction; and, as the fact itself was denied by appellee in her testimony, it would appear that the assumption made was in very truth, as counsel for appellant say in their brief, "one of the theories of the defense," in the sense at least that the assumption was disputed. "Mr. Dougherty: that it is unfit for a pedestrian and "Mr. Struckmeyer: I object to that. "Mr. Dougherty: I haven't time to fool with you. The necessity therefore for traveling upon the road is very apparent. There is the only road that "Mr. Struckmeyer: I object. "The Court: Don't interrupt counsel when he is addressing the jury." Notwithstanding this admitted conflict it is claimed on the authority of Twohy Bros. Co. v. Kepon, 21 Ariz. 606, 193 Pac. 297, that as the whole testimony and all legitimate inferences therefrom show that plaintiff was injured by reason of her own want of ordinary care, the question of her negligence is for the court, and not for the determination of the jury. In the case cited the undisputed facts were that the injured person, after being warned of the impending danger from a blast, had left a place of safety, and gone into a place of danger to his in- sidewalk at the place where appellee left jury, and the decision was expressly based upon the unquestioned facts in the case, which established that the sole cause of plaintiff's injuries was his own negligent and reckless act. 199 Pac. The substance of the contentions made by appellant is that there was no evidence upon which appellee's counsel could base his assertions even as a reasonable inference, and that the remark of the court constituted vorable to appellee and unfavorable to apa comment on the weight of the evidence fapellant. There was testimony to show that the it was but little used, and that it was grown up on the sides with grass, and had been flooded numerous times; appellee testified that water was standing on the sidewalk that night, that it was muddy there, and that she walked on the street to keep out of the mud and water. It is to be noted that the disparity of fact between the testimony on that issue and the argument of counsel is not only very slight, but that counsel for appellant did not enter on the record the specific grounds of his objections in any of his interruptions. The objections should have been specific, and the reason for making them should have been stated, 38 Cyc. 1508. The admonition of the judge was made only after appellant's counsel had objected to the statements by counsel of the inferences that the sidewalk was unfit for a pedestrian, and that it was necessary therefore to travel on the road., We think the remarks of the court must be taken as an admonition to counsel not to continue to interrupt the argument by objections for which no ground appeared or was stated, and in no respect constituted a comment on the weight of the evidence. The appellant would have us disregard also the evidence showing that he himself was negligent, which we cannot do if we are to consider "the whole testimony and all inferences therefrom." That there was testimony tending to prove that the injuries to appellee were occasioned by the negligence of the defendant is not questioned, nor (other than as above stated) has any attempt been made to show its insufficiency to that end. The questions made are therefore within the ruling of Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 190 Pac. 88, and Davis v. Boggs, 22 Ariz. 116, to the effect that, as under our constitutional provision "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" (Const. art. 18, § 5), the jury is the sole arbiter of the existence or nonexistence of contributory negligence in all actions for personal injuries. As the record shows that there was sufficient evidence of the appellant's primary negligence to send the case to the jury, the finding of the jury upon the "I charge you that if a man or woman starts defense of contributory negligence is there--although he or she has a right to do sofore binding upon the courts, and the assignment of error must be held to be without merit. [2, 3] The next assignments of error are based upon the alleged improper statements of counsel for appellee (Mr. Dougherty) and [4] The court's refusal to give the following instruction: across a street without looking for vehicles in likely to cross his path, as she or he goes to both directions passing across his path, or cross the street, that man or woman is negligent as a matter of law, because he or she has neglected a duty which both the law and common sense cast upon all persons, namely, to (203 P.) take reasonable precautions to avoid dangers appellant had not been negligent in the drivreasonably to be anticipated." ing of his car (in fact, partly upon the unpaved portion of the road) that the injuries would not have been inflicted. The instruction in such event, that negligence could not because it took place in part upon the unbe predicated of the act of appellant merely paved portion of the road, would inevitably tend to mislead and confuse the jury as to the precise legal bearing of the act of appellant thus singled out on the issue of negligence an issue properly to be determined stances of the case. only upon consideration of all the circum -is assigned as error. Even assuming that the evidence (already adverted to) was sufficient to justify the inference that appellee was about to cross the street, the instruction asked was wrong for the reason that the law imposes no such duty upon a pedestrian under the circumstances supposed. A pedestrian is not bound, before attempting to cross a street, as a matter of law, to look both ways for approaching automobiles. The requirement is to exercise reasonable care. 2 R. C. L. 1186. "The simple rule is that drivers on the streets and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care." Barbour v. Shebor, 177 Ala. 304, 58 South. 276. [5] Finally, complaint is made of the refusal of the judge of the trial court to give the following instruction, requested by appellant: "You are instructed that the defendant had the legal right to drive his vehicle upon any part to the right of the said McDowell road, whether the same was that part described in evidence as paved or unpaved, and you cannot find him guilty of negligence merely because you may find that he drove his machine in part upon the unpaved portion of said road". and asserts that in the trial of the case below counsel for appellee "ever pointed his finger to the fact that at the time of the accident appellant was driving with his two right wheels off the pavement. It was to correct any erroneous impression which the jury might gather from the stress of that point that counsel asked for the declaration by the court of the substantive law relating to the respective rights and duties of users of the highway, to be met with refusal." We think the instruction requested had a tendency to mislead the jury by treating appellant's rights without relation to the rights of appellee, and by laying undue stress on one fact in the case to the exclusion of all others proper to be considered in determining the vital issue of negligence. Appellant's legal right to drive his car on any part of McDowell road was not to be exercised without respect to the rights of others who might be lawfully using that highway. It was his duty, while driving his car, to exercise ordinary care to avoid injury to persons lawfully in the street, and the duty of such persons to exercise the same degree of care for their own safety. The law implies reciprocal obligations. Huddy on Automobiles (5th Ed.) § 414, and cases cited; 2 R. C. L. p. 1186. The gravamen of this action is that the appellant was guilty of negligence in his use of the road, to the injury of appellee. The jury might well have concluded that if the No error appearing, the judgment must be affirmed. ROSS, C. J., and MCALISTER, J., concur. (23 Ariz. 333) MARCHESE v. METHENY. (No. 1904.) (Supreme Court of Arizona. Jan. 20, 1922.) 1. Municipal corporations 705 (11)-In action for collision between automobiles, that plaintiff was running at illegal rate no defense unless it was proximate cause of injury. In an action for injuries received in a collision between automobiles, the defense that plaintiff's automobile was running at an unlawful rate, to be available, must have been the proximate cause of the injury. 2. Municipal corporations 706 (7) - Case properly submitted to the jury on defense that plaintiff was illegally speeding.. In a suit for injuries from a collision between automobiles, defended on the ground that plaintiff was negligent in driving at an unlawful speed, where there was evidence that defendant had been negligent in not giving the right of way to plaintiff's car as required by a city ordinance and in driving at an unlawful speed, the case was properly sent to the jury. Appeal from Superior Court, Maricopa County; J. E. Jones, Judge. Action by John J. Metheny against S. J. Marchese and another. From judgment for plaintiff against defendant Marchese, and an order denying a new trial, defendant Marchese appeals. Affirmed. J. E. Morrison, of Phoenix, for appellant. F. C. Struckmeyer, Thomas W. Nealon, and C. E. Johns, all of Phoenix, for appellee. FLANIGAN, J. Metheny, appellee, the owner of a Hupmobile automobile, left it at Orr & Miller Company's repair shop and garage in Phoenix, Ariz., for the purpose of having a new set of gears put in it. A few days afterwards, and on April 3, 1919, Orr & Miller Company declared the job finished, but Metheny refused to accept delivery of the car until he was satisfied of the fact. A test For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes run being accordingly agreed upon, Mr. Miller, Miller Company, was that of bailor and bailee, ། of the company drove the car about the and that the car was at the time of the accistreets of Phoenix, Metheny sitting in the dent being operated for the purpose of the front seat with him, while a mechanic from bailment, then the operation of the car by the the garage stood on the running board to listen bailee, Orr & Miller Company, was the operation by the bailor, who is the plaintiff. If. to the workings of the machinery. While so doing, and traveling south on Fourth street in then, the jury believe that the car was being operated for the purpose of testing out any Phoenix, the Hupmobile car and a Ford truck, of the parts, for the repair of which the car driven by the appellant, Marchese, in a west- was placed in the hands of the defendant, Orr erly direction on Adams street (which inter- & Miller Company, or if the car was being sects Fourth street at right angles), came in- operated for the purpose of instructing plainto collision in the area of intersection of said tiff in the use of the clutch, or the gears, or streets. Metheny sustained bodily injuries as anything connected with the operation of the a result of the collision, and brought this car, its negligent operation was, as against action to recover damages therefor against the defendant Marchese, the negligence of the plaintiff" Orr & Miller Company and Marchese as defendants, alleging in his complaint that the collision and his consequent injuries were the-which instruction, when taken in connecresult of the joint and concurrent acts and tion with the admission and claim of plaintiff omissions of the defendants in the negligent throughout the case that the relation between driving and operation of the cars so colliding, him and Orr & Miller Company was that of and testifying on the trial that at the time bailor and bailee, and that the car was at of collision the Hupmobile car was going 26 the time of the collision being operated for or 27 miles an hour and the Ford truck at the purpose of the bailment to test out the least 30 miles an hour. The defendant Orr operation of its parts, was tantamount to a & Miller Company pleaded and introduced direct statement by the judge to the jury evidence to show its freedom from negligence, that the plaintiff was to be charged with negand that the collision was the result of the ligence, as a matter of law, because of the negligence of Marchese alone in the respects operation of the car in excess of the lawful charged by plaintiff; and the defendant speed limit. The court further instructed the Marchese pleaded and introduced evidence to jury that if the plaintiff was himself guilty show that the collision was not the result of of negligence contributing to bring about his his negligent act or omission, and asserted injury, he could not recover against the dethat if anybody was in fault it was the plain- that the jury under these instructions must fendant Marchese. It is obvious, therefore, tiff, or his agent, Orr & Miller Company. have based its verdict on a finding that the The case was tried before a jury, which negligence of the plaintiff did not contribute found in favor of plaintiff and against the to the injury, but that it was proximately ocdefendant Marchese alone, exonerating Orr casioned by the negligence of the appellant. & Miller Company. The case is before us on the appeal of the defendant Marchese from the judgment, and the order of the court denying him a new trial. Upon the trial, a stubbornly contested issue was whether the allegation and admission by plaintiff of the negligence of the driver of his car in driving it at the speed of 26 or 27 miles an hour, the limit fixed by law being 15 miles (section 5134, Civ. Code) was to be imputed or charged to plaintiff as the owner of the car and the person in control thereof at the time of the collision, it being claimed by defendant Marchese that it was to be so imputed because of the relation of master and servant then existing between Metheny and the driver, and by plaintiff that such negligence could not be so imputed to him because the car was then in the possession and control of Orr & Miller Company as bailee by their agent the driver, no final delivery of the car having been made to Metheny, or acceptance thereof by him shown. The judge of the court below, in effect, decided the questions thus made in favor of appellant, because of his instruction to the jury as follows: "You are further instructed that, even if the relation between plaintiff and defendant, Orr & [1] The question, therefore, arises, whether such finding was warranted by the evidence. Appellant's contention on this point, in its various phrasings and forms, is, in substance, if not always in the precise language, that speed it could not have been at the place where "If appellee's car had been driven at a lawful the accident occurred, and therefore the appellee's negligence was the direct, proximate, and sole cause of the collision." Appellant's contention thus made cannot avail him unless it is conclusively established by the whole testimony in the case, and all legitimate inferences therefrom, that appellee's injuries were caused solely by his own want of ordinary care. Twohy Bros. Co. v. Kepon, 21 Ariz. 606, 193 Pac. 297. We think a premise necessary to that conclusion has not been established, in that the unlawful speed at which appellee's car was driven cannot be said, under the verdict, to have been a contributing cause of the collision. "The fact that the driver of a car was exceeding the speed limit at the time of an injury at a railroad crossing or a collision with another vehicle will not bar him from recovery for his injuries unless the excessive speed was a con (203 P.) tributing cause of the injury." Huddy on Automobiles (5th Ed.) § 304, and cases cited. The unlawful speed must have stood in the relation of proximate cause to the result, and the jury must be presumed to have found that the speed at which plaintiff's car was driven was but a mere attendant condition or circumstance of the collision, and, as a cause of injury, remote. The precise contention made by appellant here was the subject of the decision in Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240: "It was urged on behalf of the appellant that the speed was the immediate cause of the plaintiff's injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down. This argument, while we cannot deny its ingenuity, strikes us, to say the lease, as being somewhat sophistical. That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. The same thing might as readily have happened to a car running slowly, or it might have been that a high speed alone would have carried him beyond the tree to a place of safety." GRISTY v. HUDGENS (PHELPS DODGE CORPORATION, Interpleader). (No. 1930.) (Supreme Court of Arizona. Jan. 25, 1922.) We are in entire accord with this ruling. Master and servant 78-Right of memand the reasons given therefor. On the other hand, there was testimony upon which to predicate a finding of appellant's negligence in two particulars: A violation of the law of the road in not giving appellee's car the right of way, and the unlawful speed at which appellant was driving his car. It appears that at the time of the collision there was in force and effect an ordinance of the city of Phoenix which provided that "the drivers of all vehicles must look out for and give right of way to vehicles approaching simultaneously from their right at street intersections," and the court, after informing the jury of these terms of the ordinance, followed it with an instruction to the effect that, if the defendant Marchese was the first to cross the intersecting lines of Fourth and Adams streets, and plaintiff's car was then at a point in Fourth street sufficiently distant to have permitted defendant to pass in safety, if plaintiff's car had been driven at a lawful rate of speed, then Marchese had the right of way over the crossing as against plaintiff's car, and that if they believed that under such facts the driver of plaintiff's car attempted to pass in front of defendant's car, and thereby caused the collision, the plaintiff could not recover against Marchese. There was evidence tending to show that appellant was in fault under these instructions in not giving the right of way to plaintiff's car, and, such being the case, we may conclude that the jury found that the speed at which the cars were driven was not the proximate cause of the injury, but rather the failure of the defendant to observe the law ber of employees' benefit association to name beneficiary defined. A member of an employees' benefit association that is a private concern, and is not included in any legal or statutory classification of insurance companies of any character provided by the laws of Arizona, has the right to name any person as his beneficiary provided there is no restriction by statute or constitution or bylaw of the association, except where the insurance is taken out under such circumstances that it comes within the rule requiring the beneficiary to have an insurable interest in the life of the member. Master and servant 78- Designation of beneficiary by member of employees' benefit association held valid. sociation the insured had a right to designate In a certificate in an employees' benefit asa beneficiary other than his wife, he having taken out the insurance voluntarily and paid the premiums himself, the insurable interest rule not being applicable. 4. Insurance ~769 Contracts ascertained from laws of association, subject to law of state creating, and, if not restricted, insured may name any beneficiary. A contract entered into by a mutual benefit society with a member is executory, and its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes this contract were the deceased, William W. Gristy, and the Phelps Dodge Corporation, plaintiff herein. At the time of the death of the said William W. Gristy there was due under his certificate or policy $1,000, which amount, after his funeral expenses were paid, was reduced to $769.10, which sum is involved in this suit. Counsel for respective parties hereto have filed in this court, under date of June 9, 1921, an agreed case on appeal, under and in accordance with paragraph 1257, Revised Statutes of Arizona 1913. In addition to their stipulation as to the material facts in this case, they set forth the provisions of Appeal from Superior Court, Cochise Coun- the constitution and by-laws of the Emty; Albert M. Sames, Judge. Bill of interpleader by the Phelps Dodge Corporation, in which Alexina Gristy and Eula Hudgens, guardian, etc., were made parties. From judgment for Eula Hudgens, guardian, etc., Alexina Gristy appeals. Affirmed. O. Gibson, of Tombstone, for appellant. BOLLINGER, Superior Judge. William W. Gristy, for some time prior to his death, was an employee of the Phelps Dodge Corporation, a corporation, plaintiff herein, and was also a member of the Employees' Benefit Association of the Phelps Dodge Corporation. By virtue of his membership in said association, there was issued to him a certificate or policy of insurance in said association, which certificate or policy of insurance, upon his death, entitled the beneficiary named therein to the proceeds of said certificate or policy of insurance. William W. Gristy was a married man, his wife being Alexina Gristy, appellant herein, they having been legally married on August 22, 1909, which marriage existed as a valid one until the death of said William W. Gristy, which occurred on the 23d day of March, 1920. Deceased first applied for membership in said association on the 20th day of December, 1909. His application was approved by the superintendent of said as sociation, and a certificate of menrbership was duly issued on the 1st day of January, 1910, his wife being the first beneficiary, and the insurance amounting to $1,500. This contract was changed on or about the 1st day of January, 1914, when deceased discontinued his services and employment with the Phelps Dodge Corporation, plaintiff herein, but made application for a continuation of his membership in said association, which was permitted, but at this time the amount of his certificate or policy was reduced from $1,500 to $1,000. His contract was changed again on the 3d day of March, 1919, when he designated a beneficiary other than his wife. The real parties and only parties to ployees' Benefit Association of the Phelps Dodge Corporation which are pertinent to this case, and are as follows: "Object 1. The object of the benefit association is to provide its members with a certain income when sick, or when killed or disabled by accident off duty, or when disabled for less than two weeks by accident suffered on duty, and to pay to their families certain definite sums in case of an actual death; to create and maintain a fund which shall belong to the employees, to be used in payment of benefits to them, and to cost them the least possible considering the benefits received." Rule 17, paragraph 3, of the rules of the Benefit Association provides as follows: "Unless I shall hereafter otherwise designate, in writing, with the approval of the superintendent of the Benefit Association, death benefits shall be payable to siding at my re , myif living, and, if not living, to residing at —, if living, and, if not living, to my legal representative; or, if proper claim is not made to the superintendent within one year of the date of my death, the death benefit shall lapse and the amount thereof shall become and remain a part of the benefit fund." On March 3, 1919, the said William W. Gristy changed the beneficiary in the said certificate or policy of insurance "to Jessie May Hudgens, my friend." Jessie May Hudgens was a minor child about 12 years of age. She was not related to said William W. Gristy in any way, and was not a member of his family. Eula Hudgens, appellee herein, is the mother of said Jessie May Hudgens and is her duly appointed guardian. The Phelps Dodge Corporation, a corporation, plaintiff herein, filed a bill in interpleader in the superior court of Cochise county, Ariz., by which Alexina Gristy, appellant herein and widow of William W. Gristy, was made one of the parties, and Eula Hudgens, as guardian, and appellee herein, was made the other party, and the proceeds of the certificate or policy of insurance, amounting to $769.10, was paid into court subject to the disposition of the court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |