HARRY BRODERICK, Guardian Ad Litem for IRENE BRODERICK, a Minor, Appellant,
A. H. COPPINGER and R. L. WALKER, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Messrs. Cox, Moore & Janson, for Appellant.
Messrs. Young & McKinney, for Appellees.
[40 Ariz. 525] LOCKWOOD, J.
Harry Broderick, guardian ad litem for Irene Broderick, a minor, hereinafter called plaintiff, brought suit against A. H. Coppinger and R. L. Walker, hereinafter called defendants, to recover damages for an alleged injury caused to Irene Broderick
through the negligent driving of an automobile by Walker while he was in the employ of Coppinger. The case was tried to a jury, which returned a verdict in favor of the defendant, and, after the usual motion for new trial was overruled, this appeal was taken.
The complaint alleges the negligence to consist of (a) the driving of the automobile in question while it had defective brakes; and (b) general careless driving.
[40 Ariz. 526] There are four assignments of error which we will consider in their order. The first is that the court erred in permitting defendants to show that a test was made of the brakes on the automobile after the accident, and that they were then found to be in good condition. It is admitted by plaintiff that the result of such a test may be offered in evidence provided it is shown first that the brakes at the time of the test were in the same condition as they were when the accident occurred, but it is contended that no such showing was made by defendant in this case.
The general rule of law is that a competent witness may testify to the condition of machinery when such condition is a material issue in a case. Odegard v. North Wisconsin Lbr. Co., 130 Wis. 659, 110 N.W. 809; Billmeyer v. Queen Mfg. Co., 150 Iowa 318, 130 N.W. 115; 22 C.J. 650. When the issue is as to the condition of machinery at the time of an accident, it must, of course, appear that it was in substantially the same condition at the time of the test as at the time of the accident. Schmitz v. Stahl, 26 Misc. 788, 56 N.Y.S. 195; 22 C.J. 758. It is for the court to determine whether this proof has been sufficiently made as a matter preliminary to its introduction, and an appellate court will not question the decision of the trial court unless it appears affirmatively that the rule is violated. Huggard v. Glucose Sugar Ref. Co., 132 Iowa 724, 109 N.W. 475. The best method of proof, of course, is to show by competent witnesses that the object which has been tested has at all times been in the possession of the witnesses, so that it would have been impossible for the condition to be changed. Contrary to the opinion of many counsel, this extent of proof, however, is not absolutely necessary. The mere possibility that other persons may have had access to the object so that it might have been changed does not render the result of the test inadmissible, but merely goes to the weight to be [40 Ariz. 527] given it by the jury. Owens v. Iowa County, 186 Iowa 408, 169 N.W. 388; State v. Hays, 38 S.D. 546, 162 N.W. 311. The result in each case must be determined by the evidence offered and the sound discretion of the trial court.
In order, therefore, to determine whether the evidence offered by defendants on this point was properly admitted, we must consider whether or not a sufficient showing of similarity of the condition of the brakes was made. The evidence on this point, taking it in the strongest light in favor of defendant, as we must take it for this purpose, shows substantially as follows: Immediately after the accident, the truck was driven by defendant Walker, in company with certain police officers, to the police station and left standing in the street near the station for a period of time which does not appear in the record. It was then driven to the Maricopa Creamery, where it was left parked for a short time, and thereafter driven to the Automotive Service Station, where it was tested by a mechanic. The total length of time from the accident to the testing was between two and three hours. Each of the witnesses who handled the truck during this period, including both defendants, testified that the condition of the brakes was not altered by them nor at their direction, and there is no evidence that it was altered by anyone. The defendants are obviously the only persons who would have had any reason for changing the condition of the brakes for the better. We think that under these circumstances a sufficient showing was made so that the result of the test was admissible, the jury, of course, being the final judges as to the truth or the falsity of the testimony. Had counsel for plaintiff desired special instructions covering the various phases of the law upon this point, they should have asked for it.
[40 Ariz. 528] The second assignment is that the court erred in permitting defendants to show that Irene Broderick's mother had recovered damages from defendants in another suit arising out of the same accident. It appears that plaintiff had testified to Irene Broderick's physical condition, and was asked on cross-examination whether he had ever had her eyes tested, to which he replied that he had no money, whereupon the following colloquy ensued:
"Q. But you received $4,500.00, did you not? A. Yes, sir, afterwards.
"Mr. Cox: Just a minute, we object to that, and we ask that counsel be instructed not to make ...