THE ATCHISON, TOPEKA and SANTA FE RAILWAY COMPANY, a Corporation, Appellant,
MYRTLE CARRELL FRANCE and A. C. FRANCE, Her Husband, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment reversed and cause remanded with instructions.
Messrs. Fennemore, Craig, Allen & Bledsoe, for Appellant.
Mr. V. L. Hash, for Appellees.
[54 Ariz. 141] LOCKWOOD, J.
Myrtle Carrell France, hereinafter called plaintiff recovered a judgment against the Atchison, Topeka and Santa Fe Railway Company, a corporation, hereinafter called defendant, for damages which plaintiff alleged she received as a result of defendant's negligence while she was traveling on a train operated by it between Prescott and Phoenix, Arizona. The case was tried to a jury which returned a verdict in her favor in the sum of twelve hundred dollars, and defendant has appealed.
[54 Ariz. 142] There are six assignments of error which raise three questions of law for our determination, and which we shall consider in their proper order.
The first is that the verdict and judgment are not supported by the evidence. We have carefully read the entire transcript of evidence, and we find therein an extremely sharp conflict on the essential facts. It is the testimony of plaintiff that she was traveling in a sleeping car operated by defendant between Albuquerque and Phoenix, and that while she was in her berth in said car, about five thirty A.M., October 20, 1937, the defendant was negligently operating the train at such a high rate of speed, in view of the condition of the roadway and curves in the said railway between Prescott and Phoenix, that plaintiff was thrown from the berth in which she was sleeping, with great force and violence, and injured thereby.
Tjere is no evidence supporting plaintiff's testimony as to being thrown from her berth. There is medical testimony that three days after plaintiff claimed she was thus injured, she was examined and her body was found to be severely bruised, and that, in the opinion of the examining physician, she had received a strain of the
sacroiliac joint, which persisted for a considerable period of time and, in the opinion of the physician, was not entirely healed at the time of the trial, six or seven months after the alleged injury occurred.
There were many witnesses who were traveling on the train at the time of the alleged accident, and while none of them gave evidence which directly contradicted that of plaintiff, yet there was a very large amount of testimony as to certain facts which was utterly inconsistent with much of the evidence of plaintiff.
If we were sitting as jurors in the present case, we might hold that the decided weight of the evidence was against the verdict. Were we in the position of the trial judge, with his authority in regard to setting [54 Ariz. 143] aside of the verdict and granting a new trial on the weight of the evidence, we would certainly grant a motion to that effect, but we are an appellate tribunal, with the limitations imposed on a court of that character. We have held practically ever since the establishment of this court in the early seventies that we will not disturb a verdict and judgment because we believe it contrary to the weight of the evidence, but will only set it aside when there is no evidence to sustain it, or when the evidence is either physically impossible or so incredible that we are compelled to hold that the verdict was the result of prejudice and passion on the part of the jury. Inter-state Fidelity B. & L. Assn. v. Hollis, 41 Ariz. 295, 17 P.2d 1101; Wright v. Young, 20 Ariz. 46, 176 P. 583; Otero v. Wheeler, 21 Ariz. 50, 185 P. 359; Butler v. Shumaker, 4 Ariz. 16, 32 P. 265.
After a careful review of all the evidence in this case, we are compelled to hold that it is not so incredible nor inherently improbable that we would be justified in saying, as a matter of law, that the verdict was not sustained by the evidence, or was based on the passion and prejudice of the jury. Nor can we say the amount of the verdict is so excessive as to show the jury was actuated by improper motives. The medical evidence on the part of plaintiff shows an injury of more than ...