Verdugo v. Po Shing Gee, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtHATHAWAY; KRUCKER, C.J., and MOLLOY
Citation417 P.2d 747,4 Ariz.App. 113
Decision Date01 September 1966
Docket NumberCA-CIV,No. 2
PartiesAgustin Cota VERDUGO, Appellant, v. PO SHING GEE, Appellee. 123.

Page 747

417 P.2d 747
4 Ariz.App. 113
Agustin Cota VERDUGO, Appellant,
v.
PO SHING GEE, Appellee.
No. 2 CA-CIV 123.
Court of Appeals of Arizona.
Sept. 1, 1966.

[4 Ariz.App. 114]

Page 748

L. Tipton Jackson, Tucson, for appellant.

Murphy & Vinson, by John U. Vinson, Gordon G. Waterfall, Tucson, for appellee.

HATHAWAY, Judge.

Agustin Cota Verdugo, plaintiff in the court below, has appealed from a judgment and order denying his motion for a new trial. He had filed a complaint for personal injuries sustained by him when he was hit by Po Shing Gee's vehicle. The matter was tried to a jury and a verdict was rendered in favor of the appellee.

Since we are reviewing a judgment and order denying a motion for a new trial, all conflicting evidence will be considered in a light most favorable to appellee. All competent evidence in support of the order is taken as true, together with all reasonable inferences which may be drawn in support of the order. Stewart v. Damron, 63 Ariz. 158, 160 P.2d 321 (1945). The trial court's ruling on a motion for a new trial on the ground that the verdict is against the weight of the evidence will not be upset on appeal, unless it is affirmatively shown that the order is unreasonable and that there is a manifest abuse of discretion. Blakely Oil, Inc. v. Wells Truckways, 83 Ariz. 274, 320 P.2d 464 (1958).

Briefly, the facts are as follows: The appellee, Mr. Gee, testified that he did not know how the accident happened for he was looking straight ahead while traveling north on Main Street at a speed less than 25 miles per hour when he saw something to the right (east) of his car. He braked, swerving to the left, and the appellant's body struck the hood of his automobile. Mr. Verdugo testified that when he left the Latin American Club he had consumed two or three beers and a small whiskey in an hour to an hour and a half. He looked to the south when he stepped off the west curb, but did not see any oncoming traffic. When he saw the approaching car it was a block away and he was in the center of the intersection. He thought that there was time to cross, and knew that he had the right of way, but he was struck before he reached the east curb.

There is conflicting testimony about appellant's direction of travel (whether he was going to the east or to the west), appellee's speed and his failure to keep a proper lookout, and the effect the consumption[4 Ariz.App. 115]

Page 749

of alcohol had on appellant's faculties.

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10 practice notes
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...abuse of that discretion. Rodriguez v. Williams, supra; Heaton v. Waters, 8 Ariz.App. 256, 445 P.2d 458 (1968); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966); Smith v. Moroney, supra. We note, however, that the appellate courts are generally more reluctant to reverse orders ......
  • Walter v. Simmons, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 12, 1991
    ...the theory of the instructions given and is deemed to have admitted that there was evidence to support them); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 115, 417 P.2d 747, 749 (1966) (appellant who submitted instruction on contributory negligence admitted there was evidence to support the in......
  • Zakroff v. May, No. 1
    • United States
    • Court of Appeals of Arizona
    • July 18, 1968
    ...any objection in the trial court when these questions were propounded precludes consideration on appeal. Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966); Tanner v. Pacioni, 3 Ariz.App. 297, 413 P.2d 863 (1966); Jost v. Ross, 82 Ariz. 245, 311 P.2d 840 Finding no reasons for re......
  • State v. Diaz, No. CR-90-0212-PR
    • United States
    • Supreme Court of Arizona
    • July 23, 1991
    ...1031, 94 L.Ed. 1380 (1950)); Sisson v. State, 16 Ariz. 170, 141 P. 713 (1914) (even if shifts burden of proof); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 115, 417 P.2d 747, 749 (1966). As stated in Tassler, "Because the instruction given was the one expressly requested by defense couns......
  • Request a trial to view additional results
10 cases
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...abuse of that discretion. Rodriguez v. Williams, supra; Heaton v. Waters, 8 Ariz.App. 256, 445 P.2d 458 (1968); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966); Smith v. Moroney, supra. We note, however, that the appellate courts are generally more reluctant to reverse orders ......
  • Walter v. Simmons, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 12, 1991
    ...the theory of the instructions given and is deemed to have admitted that there was evidence to support them); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 115, 417 P.2d 747, 749 (1966) (appellant who submitted instruction on contributory negligence admitted there was evidence to support the in......
  • Zakroff v. May, No. 1
    • United States
    • Court of Appeals of Arizona
    • July 18, 1968
    ...any objection in the trial court when these questions were propounded precludes consideration on appeal. Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966); Tanner v. Pacioni, 3 Ariz.App. 297, 413 P.2d 863 (1966); Jost v. Ross, 82 Ariz. 245, 311 P.2d 840 Finding no reasons for re......
  • State v. Diaz, No. CR-90-0212-PR
    • United States
    • Supreme Court of Arizona
    • July 23, 1991
    ...1031, 94 L.Ed. 1380 (1950)); Sisson v. State, 16 Ariz. 170, 141 P. 713 (1914) (even if shifts burden of proof); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 115, 417 P.2d 747, 749 (1966). As stated in Tassler, "Because the instruction given was the one expressly requested by defense couns......
  • Request a trial to view additional results

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