Curlee v. Morris

• Decision Date: 28 May 1951
• Docket Number: No. 5275,5275
• Citation: 231 P.2d 752,72 Ariz. 125
• Parties: CURLEE et al. v. MORRIS.
• Court: Arizona Supreme Court

Page 752

231 P.2d 752

72 Ariz. 125

CURLEE et al. v. MORRIS.

No. 5275.

Supreme Court of Arizona.

May 28, 1951.

Rehearing Denied June 19, 1951.

Theodore G. McKesson, Thomas P. Riordan, and James D. McKesson, all of Phoenix, for appellants.

Jack C. Cavness, of Phoenix, for appellee.

DE CONCINI, Justice.

Georgia Morris, plaintiff-appellee, was injured while riding as a passenger in a taxicab driven by Albert McManis and owned by Arthur Curlee doing business as the Yellow Cab Company, both defendants-appellant. While traveling westward on Jefferson Street in Phoenix, Arizona, the cab was struck by an automobile traveling eastward on that street driven by one Simproso Rafal. Rafal was thereupon arrested and later convicted of reckless driving. Plaintiff brought an action alleging negligence against McManis, Curlee, and Rafal. McManis and Curlee answered and cross-claimed against Rafal who failed to answer either plaintiff's complaint or defendants' cross-claim. Rafal failed to appear at the trial and the court entered a default against him as to both the complaint and the cross-claim. At the close of the argument the court directed a verdict against Rafal in favor of appellants on their cross-complaint. The jury returned a verdict in favor of the plaintiff against the three defendants; appellants filed a motion for judgment notwithstanding the verdict, or in the alternative a motion for a new trial. From a denial of those motions appellants bring this appeal.

Appellants' assignments of error can all be relegated to the question of the sufficiency of the evidence to permit the case to go to the jury and to sustain a verdict in favor of the plaintiff.

Upon a review of the record it is patent that, at least quantitatively, the evidence favors the defendants. McManis and several police officers testified that Rafal had driven his car over to the left side of the road north of the center line and into the path of the on-coming cab, and that McManis swerved to the left immediately before the impact in an attempt to avoid a head-on collision. The trial court pointed out, 'That there may be some evidence there that justified submission to the jury, but it is very thin. * * *' The evidence to which the court was undoubtedly referring was the testimony of Mr. C. F. Love, a fellow passenger of the plaintiff in the cab. Love testified that McManis was traveling at a speed of from 40 to 45 miles per hour, that Rafal was not driving completely on the left side of the road, and that McManis turned the cab to the left directly in the path of the approaching car driven by Rafal. As 'thin' as this evidence may be, the trial court evidently felt that reasonable men could differ in their conclusions and that they might find negligence on the part of McManis therefrom. With that in view the trial court refused to grant defendants' motion for a directed verdict or judgment n. o. v.

In reviewing the evidence, and we must take it in the light most favorable to the plaintiff, we believe that there was sufficient evidence to sustain the verdict; therefore the trial court did not err in submitting the case to the jury. In deciding the question of the sufficiency of the evidence to...