Aguilar v. Carpenter
| Decision Date | 16 February 1965 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 1 Ariz.App. 36,399 P.2d 124 |
| Parties | Alexander B. AGUILAR and Dolores Aguilar, husband and wife, Appellants, v. D. C. CARPENTER and Josephine Carpenter, husband and wife, Appellees. 30. |
| Court | Arizona Court of Appeals |
Chandler, Tullar, Udall, & Richmond, by D. B. Udall, Tucson, for appellants.
Boyle, Bilby, Thompson, & Shoenhair, by W. E. Dolph, Jr., Tucson, for appellees.
The appellees, hereinafter referred to as the plaintiffs, brought an action in Superior Court against the appellants, hereinafter referred to as the defendants, to recover for personal injuries sustained by the plaintiff-wife in an automobile accident. The jury returned a verdict for the defendants, judgment was rendered thereon, and the defendants have entered this appeal from the trial court's order granting the plaintiffs' motion for a new trial.
The accident resulted from a two-car collision which occurred shortly before midnight at a street intersection controlled by traffic lights. The sole witnesses to the accident who testified at the trial were (1) the injured plaintiff, driver of one vehicle involved (2) the defendant, driver of the other vehicle involved, and (3) a passenger in the defendant's vehicle. The plaintiff testified that she had been driving in an easterly direction and that she had come to a full stop at the intersection. The only time she saw the defendant's car was while she was stopped, waiting for the light to change. The defendant was then approximately 100 to 150 feet away from the intersection, driving in a southerly direction, and approaching the intersection at a moderate rate of speed. After the light turned green, plaintiff drove into the intersection. The defendant testified that the green light was with him as he entered the intersection and that he did not see the plaintiff until just before the impact. His passenger's testimony was substantially the same. Defendant applied his brakes and swerved his car in an unsuccessful attempt to avoid a collision.
The trial court's order granting the plaintiffs' motion for a new trial stated the following grounds:
requested instruction on 'last clear chance.'
requested instruction on burden of proof.
requested instruction on contributory negligence over plaintiffs' objection.
attorney was not entitled to fully cross-examine defendant Alexander Aguilar in connection with a prior statement made by said defendant which was inconsistent with his testimony at trial.
attorney during his argument to the jury, that he could not argue that defendant was designing his statement to the investigating officer so as to avoid receiving a citation, and in ruling that such argument was improper, thereby depriving the plaintiff of a fair trial.
The defendants contend that the trial court erred in granting plaintiffs' motion for a new trial and that none of the grounds stated are valid. If any one of the reasons given is good, this court must affirm the order granting a new trial. General Petroleum Corp. v. Barker, 77 Ariz. 235, 269 P.2d 729, 732.
We agree with the defendants that the trial court did not err in refusing to give plaintiffs' requested instruction on 'last clear chance.' A prerequisite to the application of the doctrine of 'last clear chance' in a situation where an inattentive plaintiff's negligence continues up to the time of the accident is evidence that the defendant actually saw or knew of the plaintiff's situation and realized or ought to have realized that the plaintiff was inattentive. American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 167, 375 P.2d 364; Odekirk v. Austin, 90 Ariz. 97, 102, 366 P.2d 80; Restatement of the Law, Torts, § 480. In the instant case, there is no showing that the defendant saw or knew of the plaintiff's situation.
The defendants are correct in their assertion that the trial court's refusal to give plaintiff's requested instruction on burden of proof was not erroneous. The record discloses the trial court properly instructed the jury on burden of proof. Where other instructions properly inform the jury as to the issues, it is not error to refuse requested instructions covering the same subject matter. Gibbons v. Willisms, 93 Ariz. 116, 119, 378 P.2d 926.
Defendants vigorously contend that the following instructions on contributory negligence which were given in the court below over plaintiffs' objection are a correct statement of the law:
'You are instructed that even if you find that the defendant Alexander Aguilar was negligent, if you find that the plaintiff Josephine Carpenter was also negligent, and that her negligence contributed to her injuries in this case, your verdict must be for the defendants.' (Emphasis added).
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'* * * Thus, if you find that both the defendant Alexander Aguilar and the plaintiff Josephine Carpenter were guilty of negligence, and that the negligence of both contributed to the damages, you are instructed that your verdict must be for the defendants.' (Emphasis added)
We cannot agree with defendants' contention. Instructions in this form have been held to be violative of the constitutional mandate that the defense of contributory negligence 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.; Deering v. Cater, 92 Ariz. 329, 331, 376 P.2d 857; Trojanovich v. Marshall, 95 Ariz....
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Schmidt v. Gibbons
...is precluded from instructing the jury as to what conduct constitutes negligence, has been recently reiterated, Aguilar v. Carpenter, 1 Ariz.App. 36, 399 P.2d 124 (1965). The rules governing the trial court in defining contributory negligence as gleaned from the cases considered above, may ......
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Heaton v. Waters
...with subgrounds, have been delineated in this order. If any one of the grounds assigned is valid, we must affirm. Aguilar v. Carpenter, 1 Ariz.App. 36, 399 P.2d 124 (1965). Defendants' first contention is that the order, and particularly paragraph 'A' therefof, is insufficiently specific to......
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Kammert Bros. Enterprises, Inc. v. Tanque Verde Plaza Co.
...this assignment. Otherwise not. The granting of a new trial rests largely in the discretion of the trial court. Aguilar v. Carpenter, 1 Ariz.App. 36, 399 P.2d 124 (1965); Sanchez v. Stremel, 95 Ariz. 392, 391 P.2d 557 The remaining assignments of error question the denial of post-trial moti......
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Tanner v. Pacioni
...In their argument to the jury, attorneys are afforded wide latitude in discussing facts supplied by the evidence. Aguilar v. Carpenter, 1 Ariz.App. 36, 39, 399 P.2d 124 (1965). The record does not reflect the impropriety alleged by defendants. Counsel's argument, while not lacking in emotio......