Jimenez v. Starkey, 6276
| Decision Date | 11 February 1959 |
| Docket Number | No. 6276,6276 |
| Citation | 335 P.2d 83,85 Ariz. 194 |
| Parties | Pete JIMENEZ and Marta Jimenez, his wife, and Lucy Jimenez and Alice Jimenez, by their Guardian, ad litem, Pete Jimenez, Appellants, v. Imogene H. STARKEY, Appellee. |
| Court | Arizona Supreme Court |
Herbert B. Finn and Stephen S. Gorey, Phoenix, for appellants.
Kenneth S. Scoville, Phoenix, and Robert J. Spillman, Phoenix, of counsel, for appellee.
This is an appeal by Pete Jimenez and Marta Jimenez, his wife, and by Pete Jimenez as guardian ad litem for Alice Jimenez (now deceased) and Lucy Jimenez, minor children, plaintiffs-appellants. The appeal is from a judgment in favor of defendant-appellee, Imogene H. Starkey, which arose out of a collision in Phoenix between the automobiles of said parties. The complaint alleges that defendant-appellee operated her car at the time and place in a negligent manner proximately resulting in injury to plaintiffs. Defendant plead contributory negligence in her answer to the third count of plaintiffs' complaint. This count is related solely to the claim of Pete Jimenez. The parties will hereinafter be designated as plaintiffs and defendant as they appeared in the trial court.
It is the contention of plaintiffs that the trial court erred in refusing to direct a verdict in favor of plaintiffs or for judgment n.o.v. for the reason that such verdict or judgment was justified by the evidence and that there was no substantial evidence to the contrary. This is without merit for the reason that the trial court will not weigh the evidence and substitute its judgment for that of the jury if there is substantial evidence to warant submitting the case to the jury. This needs no citation of authority.
It is claimed that the trial court erred in admitting in evidence a complain filed by plaintiff in a previous case against a different defendant. In that case it was alleged that the infant Alice Jimenez and her mother, Marta Jimenez, had suffered severe injuries as a result of having been struck by an automobile driven by one Quinones wherein $50,000 damages were sought. The complaint had neither been verified nor signed. There is no evidence in the record here that the case had gone to trial although an exhibit marked for identification would indicate that it had done so. In any event, unless a pleading is either verified or the plaintiff is shown to have knowledge of its contents it is not properly admitted in evidence for impeachment purposes. Christensen v. Trotter, 9 Cir., 171 F.2d 66. Of course, if plaintiff had already gone to trial and relied upon the allegations in the previous complaint this would show both knowledge and reliance upon the allegations therein and the previous complaint under such circumstances would be admissible if its contents tended to impeach plaintiff in the case before the court. In the absence of a record disclosing the existence or nonexistence of plaintiffs' knowledge of its contents we decline to rule upon the question. Julian v. Carpenter, 65 Ariz. 157, 176 P.2d 693.
Appellants contend that the trial court abused its discretion in denying its motion for a new trial for the reason that the verdict and judgment are contrary to the weight of the evidence and to the law. An examination of the instructions given by the court indicate that the court correctly instructed the jury that the negligence of the plaintiff Pete Jimenez could not be imputed to the minors. We must presume that the jury obeyed such instructions. Therefore, in order to sustain the verdict against Lucy Jimenez, the eleven-year-old niece of Pete Jimenez, the jury had to find from the evidence that Pete Jimenez was negligent and that his negligence was the sole proximate cause of her injury, and in order to return a verdict against Alice Jimenez the jury had to find either that the negligence of Pete Jimenez was the sole proximate cause of injuries suffered by her, if any, or that the spinal meningitis with which she was afflicted was the proximate cause of her blindness independent of any injuries she may have sustained in the accident. There were sharp conflicts in the evidence on both of these issues. This makes it necessary for us to examine the evidence.
Appellants were unable to furnish a transcript of the evidence and we have in lieu thereof the 'Trial Court's Allowed Statement of Testimony' and a portion of the transcript of the evidence consisting of the testimony of defendant and Dr. Darrel B. Manley, a defense witness, as provided for by the Rules of Civil Procedure, rules 75(b) and 75(c), 16 A.R.S.
Defendant Starkey testified to the effect that in driving...
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State v. Fischer
...may only be granted “where it is manifest from all the evidence that there has been a miscarriage of justice”); Jimenez v. Starkey,85 Ariz. 194, 198, 335 P.2d 83 (1959)(new trial will not be granted where substantial evidence supports the jury verdict).B. Appellate Review¶ 23 We review a co......
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...and that the defendants were not negligent or their negligence did not cause or contribute to the accident. cf. Jimenez v. Starkey, 85 Ariz. 194, 335 P.2d 83. Defendants argument as to the jury's finding that the sole proximate cause of the accident was the driver's negligence is dependent ......
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Johnson Utilities, LLC v. Swing First Golf, LLC, 1 CA-CV 13-0625
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