Verdugo v. Po Shing Gee

• Decision Date: 01 September 1966
• Docket Number: CA-CIV,No. 2,2
• Citation: 417 P.2d 747,4 Ariz.App. 113
• Parties: Agustin Cota VERDUGO, Appellant, v. PO SHING GEE, Appellee. 123.
• Court: Arizona Court of Appeals

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.

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 of alcohol had on appellant's faculties.

In resolving the conflicts in the evidence favorably to the appellee and in drawing reasonable inferences therefrom, we find the evidence reasonably supports the following: The appellee was driving within the speed limit, maintaining a careful outlook, and operating a car with good brakes when the appellant whose faculties were impaired by alcohol, stepped from the east curb in front of appellee's car. There is substantial evidence to support the verdict for appellee.

Appellant's counsel, who was not counsel at trial, has attempted to argue new evidence on appeal to support his contention that the brake testimony was inconclusive. We will not consider this contention, since it involves matters outside the record.

The appellant assigns as error the admission of opinion testimony concerning appellant's direction of travel and appellee's speed. No objection was made below to admission of the testimony. We will, therefore, not consider this assignment of error. Jost v. Ross, 82 Ariz. 245, 311 P.2d 840 (1957).

Appellant contends that there is insufficient evidence showing contributory negligence. The jury's finding on the issue of contributory negligence cannot be disturbed if there is evidence from...