Cano v. Neill, 1

CourtCourt of Appeals of Arizona
Citation12 Ariz.App. 562,473 P.2d 487
Docket NumberCA-CIV,No. 1,1
PartiesStevan CANO, Appellant, v. Lois B. NEILL, a single woman and surviving mother of Judith Lynn Cozart, deceased, Appellee. 1247.
Decision Date11 August 1970

Westover, Keddie & Choules, by Tom C. Cole, Yuma, for appellant.

Richards & Heilman, by Harlan Heilman, Yuma, for appellee.

HAIRE, Judge.

This appeal requires us to review an order granting plaintiff-appellee's motion for a new trial in a wrongful death action. The principal question raised concerns the scope of the trial court's discretion in weighing conflicting evidence and arriving at a conclusion that the jury's verdict based thereon must be overturned and a new trial granted. Because of the frequency of recurrence of this type of question in appeals brought before this Court we have discussed the facts and the law in greater detail than normally would be the case.

The accident in question occurred on Labor Day, 1967. The defendant (appellant here) Stevan Cano was sitting at home in Yuma drinking beer and watching television when one Alice Alvarez and some other neighborhood young people prevailed upon him to take them swimming at the Senator Wash Dam, some 20 miles away in nearby California. When defendant had finished his beer, the party of twelve--consisting of eleven children of varying ages and defendant--left for the Dam. There was considerable conflict in the testimony as to the time of departure, but according to defendant the party set out some time 'after one' o'clock, 1 and arrived at the Dam some time 'after two'. Defendant drove a pick-up truck owned by his corporate employer. He had been driving the truck for three or four years, and it was, so far as he knew, in good working order. Before leaving Yuma, defendant stopped at a market and bought two 'tall' (16 ounce) cans of beer for himself and soft drinks for his passengers. Defendant drank one of these cans of beer as he was driving to the Dam.

Upon arrival at the Dam, defendant did some swimming, in connection with watching over his own two small children. He also did considerable socializing with some acquaintances he met at the Dam, and he admittedly drank the remaining 16 ounce can of beer purchased in Yuma and, in addition, 'up to' four 7 ounce cans of beer provided by his acquaintances.

Defendant gathered the children and commenced the return trip to Yuma about 5:45 p.m. Seventeen year old Ray Smith and thirteen year old Jack Pugh were with defendant in the cab of the truck. The other nine, including plaintiff's decedent, were riding in the bed of the truck. The fatal accident took place about 10 or 15 minutes later, when the truck crashed into one side of a bridge and on into a wash below as a result of defendant's failure to negotiate a sharp leftward curve in the highway leading into the bridge.

Between the Dam and the bridge, defendant passed the automobile in which his acquaintances whom he had seen at the Dam were riding. The unrestricted speed limit on the highway was 65 miles per hour. Defendant testified that after he accelerated somewhat to pass the car, he slowed up a little to a speed of about 40 to 45 miles per hour. He was not watching the speedometer, however, and Ray Smith, who did observe the speedometer, testified that the defendant was driving at a rate of 55 or 60 when he passed the car, and that he maintained that speed after the overtaking. Alice Alvarez, a day short of fifteen years of age at the time, testified that defendant 'started going fast' when he passed the car and maintained the same speed thereafter. As he approached the bridge, defendant passed two signs, one reading 'SLOW DANGEROUS CURVE 1000 FEET', and the other reading 'SLOW DANGEROUS CURVE 500 FEET'. A local police officer testified that only a skillful driver could negotiate the curve at as much as 25 miles per hour. Defendant, who had driven the same road on two previous recent occasions, testified that he was 'paying attention to the kids' and did not notice the signs. He admittedly made no effort to slow the truck until well after he had passed both signs. Questioned in this regard by plaintiff's counsel, defendant testified as follows:

'Q All right. Now, had you been alert and saw that sign 'Slow Dangerous Curve 1000 Feet' you would have started to slow up right then, wouldn't you?

'A I probably would have, yes, sir.

'Q And had you been alert and saw that sign at five hundred feet, you would have slowed up right then, wouldn't you?

'A Well, I was paying attention to the kids; I guess I didn't notice.

'Q I say, had you been alert and watching the road you would have started to slow up long before you got to the bridge, wouldn't you?

'A I was trying to keep alert on that road.'

There was testimony that defendant was driving with one hand as he approached the bridge. Defendant was unable to state in person at the trial just when he first attempted to slow the speed of the truck. At a pretrial deposition, however, which was read into evidence, he 'guessed' that he first attempted to 'stop' the vehicle '(a)bout one hundred feet' from the bridge. At whatever point defendant did first attempt to apply the brakes, his explanation was that they did not work properly. He told the investigating officers that the brakes 'faded' after application, and he testified at the trial that he 'pumped' the brakes but was unable to get any 'pedal'. However, the evidence did indicate that at some point close to the bridge defendant did 'slam on' the brakes, with effect, and that the truck laid down skid marks ranging from 50 to 65 feet in length. Defendant also testified that the accelerator must have been stuck, or was stuck, because the truck continued to travel 'too fast', and because Ray Smith got down on the floor of the cab and attempted to pull out or free the accelerator. Smith testified that he did this because he saw defendant 'poking up toward the gas pedal' with his foot and he (Smith) 'figured something was wrong'. Smith stated that the accelerator was 'stuck', but his testimony is unclear as to whether it was in a depressed or normal ('out') position. Defendant did not mention any difficulty with the accelerator to the investigating officers at the scene of the accident, and apart from the foregoing summarized testimony, there was no evidence introduced at the trial tending to show any malfunction of either the brakes or the accelerator.

After the accident, defendant voluntarily submitted to a blood alcohol test. The test was performed in Yuma at about 7:30 p.m. on the day of the accident. The person who administered the test had considerable experience. She reported that the test revealed that defendant's blood contained 0.22% Alcohol by weight at the time the test was made. Defendant's counsel took vigorous exception to the volume-to-weight conversion factor used by the tester, but if the conversion figure suggested by defendant's counsel as correct had been used, the resulting percentage of alcohol in the blood would have been 0.19% Instead of 0.22%, still in excess of the 0.15% Figure which gives rise to a statutory presumption that one is under the influence of intoxicating liquor. See A.R.S. § 28--692, subsec. B(3). Defendant, who weighed between 125 and 130, admitted to consuming 84 ounces of beer on the day in question, and on this basis an expert called in his behalf hypothesized that his blood would have been about 0.08% Alcohol by weight at the time of the accident. Investigating officer Hartley indicated that he was somewhat surprised to hear that the test result had been as high as 0.22%, but he also indicated that had defendant not been in a state of ostensible shock immediately after the accident, he would have been of the opinion that he was under the influence of alcohol.

Trial of the case ended in a jury verdict for defendant. Plaintiff moved for a new trial. In an order which leaves nothing to be desired Vis a vis the specificity requirements of Rule 59(m) of our Rules of Civil Procedure, 16 A.R.S., the trial judge outlined the evidence which he considered most pertinent and stated his conclusion that the only logical inference to be drawn from defendant's testimony was that he was negligent in driving at an unsafe speed and in failing to keep a proper lookout, and that such negligence was at least A proximate cause if not The proximate cause, of the accident. He accordingly granted plaintiff's motion for new trial on the following three grounds (numbered as in plaintiff's motion):

'2. The court committed error in instructing the jury on 'imminent peril' * * *.

'4. The verdict is not justified by the evidence and is contrary to law.

'5. Error in overruling plaintiff's motion for a directed verdict * * * on the issue of liability at the close of all the evidence.'

The trial judge held that there was no merit in two other grounds urged by plaintiff, one concerning remarks of opposing counsel, and the other stating that the 'verdict is the result of prejudice or passion.'

An order granting a new trial will be affirmed if it is justified on any one of the grounds stated in the order. Heaton v. Waters, 8 Ariz.App. 256, 258, 445 P.2d 458, 460 (1968); Cf. General Petroleum Corp. v. Barker,77 Ariz. 235, 240, 269 P.2d 729, 732 (1954), and Zevon v. Tennebaum, 73 Ariz. 281, 283, 240 P.2d 548, 549 (1952). 2 With this in mind, we focus attention on the ground numbered '4', stating that the 'verdict is not justified by the evidence and is contrary to law'.

This ground is phrased in the broad general terms of subparagraph (8) of Rule 59(a), which subrule enumerates the grounds upon which a new trial may be granted. Were we to give a strict literal reading to the language of paragraph '4' of the order and subparagraph (8) of Rule 59(a), it might be possible for us to reach a conclusion that this ground can support the granting of a new trial...

To continue reading

Request your trial
38 cases
  • State v. Harrod, CR-98-0289-AP.
    • United States
    • Supreme Court of Arizona
    • July 16, 2001
    ...961 P.2d 449, 453 (1998); Anderson v. Nissei ASB Machine Co., Ltd., 197 Ariz. 168, 173, 3 P.3d 1088, 1093 (App. 1999); Cano v. Neill, 12 Ariz.App. 562, 569, 473 P.2d 487, 494 (1970). But it is one thing to say that a verdict will not be disturbed just because the judge disagrees with it and......
  • Murray v. Farmers Ins. Co. of Ariz., 2 CA–CV 2014–0123.
    • United States
    • Court of Appeals of Arizona
    • January 19, 2016
    ...not supported by the record and failed to consider all the evidence in reaching its conclusions.Id. ¶¶ 19, 29, quoting Cano v. Neill, 12 Ariz.App. 562, 569, 473 P.2d 487, 493 (1970).¶ 25 Neither Tarron nor Fischer address the situation here, where the trial court made a supported finding th......
  • State v. Fischer, 1 CA–CR 14–0183.
    • United States
    • Court of Appeals of Arizona
    • October 8, 2015 trier of fact, he would have reached a different result,” nor may he substitute his own judgment for that of the jury. Cano v. Neill,12 Ariz.App. 562, 569, 473 P.2d 487 (1970)(citing J. Moore, Federal Practice, § 59.08(5), at 3818–19 (2d ed.1953)); see Hutcherson,192 Ariz. at 56, ¶ 27, 9......
  • State v. Fischer, CR–15–0380–PR
    • United States
    • Supreme Court of Arizona
    • April 17, 2017
    ...a miscarriage of justice." Fischer , 238 Ariz. at 315 ¶ 22, 360 P.3d at 111 (internal quotation marks omitted) (quoting Cano v. Neill , 12 Ariz.App. 562, 569, 473 P.2d 487, 494 (1970) ). In the State's view, a new trial is appropriate "only where the verdict is objectively unreasonable, man......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT