Brownell v. Freedman, Civil 3068

• Decision Date: 19 January 1932
• Docket Number: Civil 3068
• Citation: 39 Ariz. 385,6 P.2d 1115
• Parties: GEORGE BROWNELL, Appellant, v. W. E. FREEDMAN, Appellee
• Court: Arizona Supreme Court

6 P.2d 1115

39 Ariz. 385

GEORGE BROWNELL, Appellant, v. W. E. FREEDMAN, Appellee

Civil No. 3068

Supreme Court of Arizona

January 19, 1932

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Affirmed.

Messrs Struckmeyer & Jennings and Mr. T. E. Scarborough, for Appellant.

Mr Alexander Murry and Mr. George M. Roark, for Appellee.

OPINION

LOCKWOOD, J.

W. E Freedman, hereinafter called plaintiff, brought suit in the superior court of Pima county against George Brownell hereinafter called defendant, for personal injuries alleged to have been sustained by the former in an automobile accident which he claimed to have occurred as the result of the negligence of defendant. The case was tried to a jury, which returned a verdict in favor of defendant. Thereafter a motion for a new trial was filed by plaintiff, which was taken under advisement and finally granted without specifying the ground upon which the order was made, and from such order of the court granting a new trial this appeal was taken.

It is, of course, the law that, when a new trial is granted by the trial court with no specific reasons therefor, if in the record there appears any reason why it would have been within its discretion to grant the motion, we must assume the order was based upon such reason. Upon examining the record in this case, we are of the opinion that, if the order is to be sustained, it must be on the ground that the verdict is contrary to the weight of the evidence, and we discuss the case from this angle. The evidence, interpreted in the strongest manner in behalf of plaintiff, as we must interpret it under our oft-repeated rule, shows the facts to be as follows:

Plaintiff at the time of the accident was residing in Bisbee. The young lady who afterwards became his wife, together with a friend of hers, had been visiting there, and was about to return to her home. Due to some trouble with his automobile, he was unable to take the ladies to the train, and, meeting defendant, who was his friend, asked the latter if he would take them, to which defendant agreed. When the four arrived at Naco the train was not yet there, and defendant suggested that they go across the line and get something to eat. Thereafter he offered to take all of the parties to Tucson in his automobile. Plaintiff asked him if that would not inconvenience him, to which defendant replied that he had some business affairs he would take care of at different places on the way over, and that it would be no inconvenience at all.

One of the ladies drove the car until the party was within about twenty-five miles of Tucson, when defendant took the wheel. Shortly after this, and while defendant was driving it, the automobile ran off the highway, and plaintiff was more or less severely injured. The particular negligence alleged is that "said defendant negligently and carelessly fell asleep while so driving said automobile and lost control of said automobile, and that the defendant's carelessly and negligently falling asleep while driving said automobile resulted in said automobile running off the highway and throwing the said plaintiff against the sides, top and seats of said automobile."

The rule of law applicable to the negligence alleged in the complaint is well stated by the court in the case of Bushnell v. Bushnell, 103 Conn. 583, 44 A.L.R. 785, 131 A. 432, as follows:

"In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. Carlson v. Connecticut co., 95 Conn. 724, 112 A. 646; Sliwowski v. New York, N.H. & H.R. CO., 94 CONN. 303, 309, 108 A. 805; 1 SHEARMAN & REDFIELD, NEGLIGENCE, § 58A ET SEQ.; POSTHUMOUS PAPER OF EZRA RIPLEY THAYER, 29 HARVARD LAW REVIEW, 807. IF SUCH CIRCUMSTANCES ARE CLAIMED TO HAVE BEEN PROVEN, IT THEN BECOMES A QUESTION OF FACT WHETHER OR NOT THE DRIVER WAS NEGLIGENT; AND, IN...