Opinion
No. 2 CA-CIV 1411.
November 15, 1973.
Action brought by a mother against the driver of an automobile for damages for the wrongful death of her son, a passenger in the vehicle. The Superior Court, Cochise County, Cause No. 26181, Anthony T. Deddens, J., entered judgment for the driver, and the mother appealed. The Court of Appeals, Howard, J., held that evidence that the decedent and two other boys left a party in a state of intoxication, that before leaving the driver was asked in the decedent's presence whether he should drive, that the driver then drove down a dirt road at 65 to 70 miles per hour, almost colliding with an oncoming car, and that decedent and the driver had their arms around each other just prior to the accident, was sufficient to warrant giving a jury instruction on assumption of risk and contributory negligence; it further held that an instruction that a verdict "should" be returned for the driver if the decedent was found to have been contributorily negligent was not invalid as peremptorily requiring the jury to hold for the driver or as violating a constitutional mandate that the defense of contributory negligence or of assumption of risk should at all times be left to the jury.
Affirmed.
Ramon R. Alvarez, Douglas, for appellant.
Mesch, Marquez Rothschild by Alfred C. Marquez, Tucson, for appellee.
OPINION
This is an appeal from a judgment entered for the appellee, who was the defendant in this action. Appellant, the mother of Dennis Shaya, instituted this action for the wrongful death of her son.
Appellant's son was killed when the car driven by appellee went out of control and overturned. Both the decedent and appellee had been drinking heavily prior to the accident.
Appellant raises three questions for us to consider on this appeal. The first two we will consider together. Was there sufficient evidence presented to warrant giving the jury an instruction on assumption of risk and contributory negligence? We hold that there was. Facts introduced at trial indicate that the defendant, the decedent and two other boys left a beer bust in a state of intoxication. Before leaving defendant was asked within the decedent's presence whether he should drive. Upon leaving the defendant proceeded on a dirt road at 65-70 m.p.h. Prior to the accident they met a car going in the opposite direction with which they almost collided and nothing was said to appellee. Appellee and the decedent had their arms around each other just prior to the accident. These facts are enough to submit to the jury the questions of contributory negligence and assumption of risk.
Appellant's final contention is that the following instructions on contributory negligence and assumption of risk violated Article 18, § 5 of the Arizona Constitution, A.R.S.:
Article 18, § 5 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."
"If the conduct of both the decedent and the defendant was negligent; and if the negligent conduct of each considered separately was a proximate cause of the accident, it is immaterial who was more negligent. In such a case, the plaintiff should not recover." (Emphasis added)
"One of the defenses in this case is that the decedent assumed the risk of the injury and his death. As to this defense, the defendant had the burden of proving that the plaintiff assumed the risk. If you find that the decedent assumed the risk in such a case, the plaintiff should not recover." (Emphasis added)
The courts of this state have approved instructions concerning contributory negligence which include the language that the "verdict must be for the defendant." Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962). It is axiomatic that if a verdict "should" be for the defendant, then it "should not" be for the plaintiff. Because the word "should" is conditional the phrase "should not" is also conditional. We therefore hold that the challenged instructions did not "peremptorily require the jury to follow such instructions", Heimke v. Munoz, supra, and did not violate the constitutional provision.
Affirmed.
HATHAWAY, C.J., and KRUCKER, J., concur.