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Willett v. Ciszek-Olson12/24/1991
tersection because the plaintiff there was in the middle of the intersection. The evidence in this case was that Ciszek-Olson was also in the middle of the intersection when the light turned red.
Willett argues that the court erred in giving the instruction because it was a comment on the evidence and because a Tucson city ordinance provides otherwise.
She contends that the instruction tended to single out a particular factual aspect of Ciszek-Olson's case, citing Bell v. Maricopa Medical Center, 157 Ariz. 192, 755 P.2d 1180 (App.1988). In that case, Division One of this court upheld the trial court's refusal to instruct the jury that it could consider hospital protocols as evidence of the standard of care in a medical malpractice case. In so ruling, the court noted that "the trial [court] should not ordinarily single out a particular factual aspect of the litigation for special instructions because this may cause the jury to attach undue significance to it." Id. at 196, 755 P.2d at 1184. The trial court here instructed the jury on several traffic laws and the duties of drivers. The objected-to instruction was nothing more than that. It did not constitute an impermissible comment on the evidence.
Willett also argues that the instruction is contrary to Tucson City Code ยง 20-156, which provides:
No driver shall enter an intersection or a marked crosswalk unless there is sufficient space on the other side of the intersection or crosswalk to accommodate the vehicle he is operating without obstructing the passage of other vehicles or pedestrians, notwithstanding any traffic-control signal indication to proceed.
Willett argues that because of the ordinance, Ciszek-Olson was not lawfully in the intersection, and her instruction based on Flashberg did not apply. We disagree. The obvious purpose of the ordinance is to require vehicles to wait behind the crosswalk when traffic has backed up in an intersection because of excess traffic, an accident, road construction, or the like. There was no evidence that the intersection here was so obstructed. We find no error in the giving of the instruction.
Reversed and remanded.
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