APPEAL from a judgment of the Superior Court of the county of Pima. C. C. Faires, Judge. Judgment reversed and case remanded for new trial.
Mr. Francis M. Hartman, for Appellant.
Mr. H. O. Juliani and Mr. E. T. Cusick, for Appellee.
[38 Ariz. 128] LOCKWOOD, J.
This is the second appeal of this case. The first appeal was taken from an order of the lower court granting a new trial on the issue of damages only, and this court held that upon the record a new trial should be granted on all the issues, and so ordered. Southern Pac. Co. v. Gastelum, 36 Ariz. 106, 283 P. 719. The case was retried on the same pleadings in the lower court, and the jury returned a verdict in favor of plaintiff in the sum of $16,372, upon which verdict judgment
was rendered, and, from said judgment and the order denying the usual motion for a new trial, this appeal was taken.
There are some ten assignments of error, which raise various legal propositions. The first is that [38 Ariz. 129] the evidence is insufficient to establish negligence under the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59). The majority opinion on the first appeal held that the evidence as given at the first trial did not sustain the verdict, and that if, on the second trial, no other or further evidence of negligence appeared, it was the duty of the trial court to instruct a verdict for the defendant. We have examined and compared the testimony given at both trials, and it appears to us it is much stronger on this issue at the second trial than it was at the first one. The particular act which it is contended constitutes negligence was the pushing of a certain wooden platform against plaintiff by two of his co-employees.
The testimony of plaintiff on this point at the first trial, taking it at the strongest in his favor, was:
"When I tried to get off, my feet from the track, on the outside, they pushed the platform toward me. I stepped on a stone, slipped and after that I don't know what happened."
At the second trial he said:
"Dominguez and I were to lift the platform, and was lifting the platform when Robles rushed up to help, and Dominguez and Robles pushed the platform on me, and caused me to fall. . . ."
Robles on the first trial testified, in regard to the platform:
"Why, I didn't push on it. It slipped that way in the change, in making ...