APPEAL
from a judgment of the Superior Court of the County of
Cochise. Alfred C. Lockwood, Judge. Affirmed.
OPINION
BOLLINGER, Superior Judge.
Charles N. Thomas, the appellee herein, sued the city of
Bisbee, the appellant herein, for damages in the sum of
$25,000 for alleged personal injuries received in an
automobile accident. The case was tried before a jury, and
plaintiff received a verdict of $4,000 damages and costs of
suit. The injuries complained of were received on the
twentieth day of September, 1919, by appellee, when his Ford
car was wrecked on the Sims road, in Bisbee, Cochise county,
Arizona. The substance of the pleadings in
this case is set forth in appellant's brief, on pages 2
and 3, as follows:
"The
complaint alleges in substance that on the morning of the
20th day of September, 1919, while the plaintiff was driving
over Sims road in his automobile, he overturned into a ditch,
receiving certain injuries therefrom, and that the overturn
was the direct result of a defective condition in Sims road,
as follows: At the place in the street where the plaintiff
overturned there was a rather steep declivity, and that
around and in the bottom of the incline there was an
accumulation of rocks and boulders, negligently and
carelessly left by defendant so as to constitute a dangerous
obstruction to vehicular traffic; that the road was narrow,
and that there was a gully, depression, or ditch precipitous
from the road on plaintiff's right, unbarred in any way;
that plaintiff's automobile struck one of these rocks or
boulders, resulting in the overturn. (Abstract of Record,
7-9.)
"That
as a result of such overturning the complaint alleges that
the plaintiff was severely cut, bruised, and wounded on his
head, body, and limbs; that he has partially lost the sensory
and motive power and the reflexes of his arm and leg; that
his kidney became affected, subjecting him to a kidney
disease involving, as one of its symptoms, unduly frequent
urination; that he has suffered great bodily pain and great
mental anguish, and that he will be permanently hurt,
crippled, and maimed, his bodily and mental faculties for the
remainder of his life will be impaired in power and function,
and that his earning capacity has been permanently reduced.
(Abstract of Record, 12-14.)
"The
defendant filed a general demurrer, admitted the corporate
capacity of defendant, and denied the other allegations of
the complaint. No plea of contributory negligence was set up
in the answer. (Abstract of Record, 17, 18.)"
In
support of his case, Charles N. Thomas, appellee, testified
as follows (Abstract of Record):
"I am 68 years old, and a resident of Cochise
county for about 43 years. I have mined, been an officer and
night watchman for a number of years, and my health was good
-- excellent up to September 20, 1919. On September 19, 1919,
I came to Bisbee from my ranch about eight miles away in my
Ford car, coming down the main traveled road. At about 4 in
the morning, when it was very cloudy and a dark morning, I
started home, but found a plank and 'wooden horses'
across the road with lanterns on it, and I therefore went up
Sims road. In this road there was a culvert, and just after
passing it I struck a rock in Sims road which threw the back
of my car off the road, and it went over the culvert 12 feet.
I was caught under the car, and was bleeding. I finally
pulled myself out, and went to my son-in-law's house. As
a result of my overturn I received an injury on the right
side of my head, a cut over my eye, cut on my right cheek,
and one under my left jaw. My shoulder is lame from the
accident. Because of said accident I urinate most all the
time, have heated sensations, at times my foot gets cold; at
times I cannot tell when I have hot water at my feet, and
that I had none of the symptoms before this injury. My head
was sore on the left side, and my thinking faculties are not
like they were. I begin a subject and forget it. My left hand
and arm were bad for six weeks. My left leg jerks, feeling
like it is partly dead. I was laid up three days from the
above injuries. Prior to these injuries my health had always
been good. Now my heart has fluttering spells. At the time of
the accident I was employed as a night watchman for merchants
of Bisbee. I was earning in the neighborhood of $250 per
month. As a result of my injuries my earnings have been
decreased $140 a month."
While
there is a sharp conflict of the testimony given as to the
cause, extent and nature of appellee's injuries, he
produced substantial testimony of other witnesses to
corroborate his own. The case was submitted to the jury after
they had heard the testimony, and the verdict of the jury is
conclusive, and should not be disturbed.
Ryder v. Leach, 3 Ariz. 129, 77 P. 490;
McGowan v. Sullivan, 5 Ariz. 334, 52 P.
986; De Mund Lumber Co. v. Stilwell, 8
Ariz. 1, 68 P. 543; Barter v. County of
Pima, 2 Ariz. 88, 11 P. 62; Copper Queen Min.
Co. v. Arizona Prince Copper Co., 2 Ariz. 10, 7
P. 718; Tweed v. Lowe, 1 Ariz. 488, 2 P.
757.
Counsel
for appellant have abandoned their assignments of error with
two exceptions. These exceptions are assignment of error No
I (B) and assignment of error No. II. ...
