E. F. GARLINGTON, Appellant,
EMMETT McLAUGHLIN, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.
Mr. V. L. Hash, for Appellant.
Messrs. Moore & Romley, for Appellee.
This action was brought by E. F. Garlington against Emmett McLaughlin for damages for [56 Ariz. 38] personal injuries he sustained in an automobile accident on the 30th day of July, 1935, between 1:30 and 2:00 o'clock A.M., at a point east of the intersection of Van Buren and 16th Streets in Phoenix.
The complaint alleges that defendant was going east on Van Buren Street and (1) negligently ran into plaintiff and injured him; (2) that defendant was negligently traveling on the left or north side of the road in violation of law; (3) that he was traveling at a speed in excess of fifty miles an hour, a speed greater than was consistent with ordinary care considering the width of the road and the travel thereon; also that where the accident occurred was a residential district and the lawful limit therein was twenty-five miles an hour; and (4) that defendant did not keep a proper lookout for plaintiff, who was walking across Van Buren Street from the south to the north and was on the left half thereof when struck; that if defendant had been in the exercise of ordinary care he could have seen plaintiff's danger and avoided running into him by stopping or slackening the speed of his automobile or by keeping on the right side of the highway.
The defendant's answer consists of a general denial and an allegation that plaintiff's injuries were the result of his sole negligence, or his sole and contributory negligence.
The case was tried by the court with a jury and resulted in a verdict and judgment in favor of defendant. The plaintiff has appealed.
The first assignment of error is:
"That the court erred in refusing to grant plaintiff a new trial for the following reasons:
"(a) That the verdict of the jury was contrary to the weight of the evidence.
"(b) That the verdict of the jury and the judgment rendered thereon is contrary to the evidence.
"(c) That the evidence conclusively established the negligence of defendant McLaughlin in the operation [56 Ariz. 39] of defendant's car and that the injuries resulting to the plaintiff were caused by such negligent operation and that ...