Brooks v. De La Cruz

• Decision Date: 02 September 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 12 Ariz.App. 591,473 P.2d 793
• Parties: Walter Lee BROOKS, Appellant, v. Emilia DE LA CRUZ, a Minor by her Guardian ad Litem, Concha de la Cruz, Appellee. 953.
• Court: Arizona Court of Appeals

Page 793

473 P.2d 793

12 Ariz.App. 591

Walter Lee BROOKS, Appellant, v. Emilia DE LA CRUZ, a Minor by her Guardian ad Litem, Concha de la Cruz, Appellee.

No. 1 CA-CIV 953.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 2, 1970.

Rehearing Denied Sept. 28, 1970.

Jennings, Strouss & Salmon, by Michael A. Beale, Phoenix, for appellant.

Harold Goldman, Phoenix, for appellee.

JACOBSON, Judge.

We review an order granting the plaintiff-appellee a new trial. We will refer to the parties as they were in the trial court.

The minor plaintiff, Emilia de la Cruz, was injured near the end of her journey across East Washington Street in the City of Phoenix when she was struck by a an automobile driven by the defendant Walter Lee Brooks. Emilia was in marked crosswalk at the time. She was five years old, and in the company of her aunt, Lorenza Dominguez, age 16, who had taken Emilia to Mass at a nearby church. The accident occurred at about 12:00 noon on a Sunday. East Washington Street is a five-lane, one-way street at the point in question, with a maximum speed limit of 35 miles per hour carrying traffic in a westerly direction. The pedestrian crosswalk where Emilia was injured is on the east side of the intersection of 9th Street (which runs north and south) and East Washington. Emilia and her aunt were crossing East Washington from north to south. The accident occurred in the 'fifth' or southermost lane of traffic, after Emilia had 'broke away' from her aunt's grip. The general defense was that a car which overtook defendant's vehicle on his right so obscured his vision that he did not see Emilia until it was too late to avoid the accident. We will discuss the facts later in the opinion in further detail.

At the trial, the only major 'liability' witness for the plaintiff was her aunt, Miss Dominguez. Miss Dominguez gave her testimony in Spanish, and was questioned and heard by means of a court-appointed interpreter. The trial ended in a jury verdict for defendant. On plaintiff's motion, the trial court granted a new trial for the following stated reasons:

'IT IS HEREBY ORDERED granting plaintiff a new trial for the reason that the verdict rendered in this action is not justified by the evidence and that plaintiff has been denied a fair trial due to the incompetence of the court-appointed interpreter upon the trial and said interpreter's inability to properly translate the testimony of plaintiff's principal witness.'

Thus, two separate grounds are stated in the order. The first ground--that the verdict 'is not justified by the evidence'--is stated in the terms of the first part of subparagraph (8) of Rule 59(a) of our Rules of Civil Procedure, 16 A.R.S. The second stated ground refers to the general ground embodied in subparagraph (1) of Rule 59(a), applicable when a party has for various reasons been deprived of a fair trial in the view of the trial judge.

We do not think that either one of the stated grounds is stated with sufficient particularity to be in compliance with Rule 59(m), which provides as follows:

'59(m) Specification of grounds of new trial in order. No order granting a new trial shall be made and entered unless the order specifies with particularity the ground or grounds on which the new trial is granted.'

The term 'with particularity' in Rule 59(m) means 'in a detail.' Yoo Thun Lim v. Crespin, 100 Ariz. 80, 82, 411 P.2d 809, 810 (1966), Quoting Webster's Third International Dictionary.

The first ground of the order is phrased in the unembellished and unenlarged-upon language of the first half of Rule 59(a)(8), and plainly it cannot meet the 59(m) test. The second ground stated comes a little closer to compliance but, in our view, whether or not a stated ground is sufficiently particularized is necessarily somewhat dependent upon the complexity of the circumstances to which the stated ground is addressed. Here, from the record it is apparent that plaintiff's counsel at the trial spoke and understood Spanish well. The record fails to reveal that he made any objection to the qualifications of or the interpretations rendered by the interpreter, and there was no mention of the interpreter in plaintiff's motion for new trial. The record does not show whether the trial judge was or was not conversant in Spanish. Considering that 59(m) is 'designed to serve a practical purpose and should receive a practical construction,' Heaton v. Waters, 8 Ariz.App. 256, 260, 445 P.2d 458, 462 (1968), more is required under the circumstances than a general statement that the interpreter was incompetent and unable to translate properly Miss Dominguez' testimony.

Here, we are not advised with any particularity as to How the generally-stated incompetency or inability of the interpreter in his translation of Miss Dominguez' testimony operated against the plaintiff. A brief list of examples or statement of judicial impressions would undoubtedly suffice. Or if, for example (if such were the case), the trial judge had stated that in his view, the necessity of counsel assisting the interpreter by suggesting alternative translations resulted in jury confusion as to just what was and was not the testimony of the witness herself, we would then have an adequately detailed idea of the specific factor or factors which prompted the trial judge to exercise his discretion on this ground. Whatever the activating circumstances were, Something more than that stated is necessary to enable us to review the matter intelligently.

Thus, while general grounds have been stated and the order is therefore not a nullity, Cf. Estabrook v. J. C. Penny Co., 105 Ariz. 302, 464 P.2d 325 (1970), we must under Yoo Thun Lim, supra, assume that the verdict was correct and that the trial judge was in error in granting a new trial. This means that the burden is upon the plaintiff-appellee to persuade us that the trial judge had a properly exercisable discretion to grant a new trial on one of the two generally stated grounds.

We turn our attention to the stated ground that the verdict was not justified by the evidence. This, in essence, is viewed as a determination by the trial judge that the verdict is against the weight of the evidence. See Cano v. Neill. 12 Ariz.App. 562, 473 P.2d 487 (Filed August 11, 1970), citing State v. Ross, 97 Ariz. 51, 53--54, 396 P.2d 619, 620--621 (1964), and General Petroleum Corp. v. Barker, 77 Ariz. 235, 243, 269 P.2d 729, 734 (1954). Had there been a compliance with 59(m), we would affirm if the evidence appeared tous merely 'equiponderant,' See Cano v. Neill, Supra, but since there was no such compliance, it is incumbent upon plaintiff to persuade us that the weight of the evidence pointed to a verdict in her favor.

Whether plaintiff has carried this burden must be judged within the framework of the relevant legal context. Here, the plaintiff was in a marked crosswalk where she had the right of way. A.R.S. § 28--792. It has been said that '(a) right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced.' Taggart v. Vogel, 3 N.Y.2d 58, 163 N.Y.S.2d 674, 143 N.E.2d 390 (1957), quoting from prior authority. Concededly, the infant ...