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Lemke v. Gardner

Supreme Court of Arizona

April 28, 1947

LEMKE
v.
GARDNER et al

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Affirmed.

Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellant.

Don P. Skousen and J. H. Glenn, both of Phoenix, for appellees.

Stanford, Chief Justice. La Prade and Udall, JJ., concurring.

OPINION

Stanford, Chief Justice.

[65 Ariz. 304] For the purpose of this appeal we will style the parties as they were in the Superior Court. Plaintiffs sued defendant for damages to their car and injuries to the plaintiff Fannie M. Gardner.

On the 11th day of October, 1945, Fannie M. Gardner was driving plaintiff's car in a westerly direction on east Pierce Street, Phoenix, Arizona. Defendant was driving his car south on North 11th Street. The cars collided just west and north of the center of the intersection. Other facts will be developed as we continue.

The case was tried before a jury and the jury rendered its verdict in favor of the plaintiffs for the sum of $ 338 for damages to the plaintiffs' car and for the sum of $ 1,000 for injuries received by Fannie M. Gardner. Defendant appealed from the judgment rendered on the verdict and also from an order denying the defendant's motion for a new trial.

At the close of the plaintiffs' case the defendant made a motion for directed verdict and again renewed that motion at the close of the entire case. Said motions were based upon the ground that there was no evidence in the record of any negligence on the part of the defendant for the reason that there was no evidence showing or attempting to show that the accident was caused by any actionable negligence on the part of defendant. The denial of said motions was assigned as error, and the other assignment of error is: "The court erred in denying defendant's motion for a new trial upon the ground that the verdict and judgment are not justified by the evidence and are contrary to law because the evidence clearly shows that the accident was caused by plaintiff's negligence on the part of defendant proximately causing the accident."

Page 789

It is important that we briefly review the testimony in this case. Mrs. Gardner said that she was traveling around 20 miles an hour when she approached the intersection at 11th and Pierce Streets; that the point of impact of the two cars [65 Ariz. 305] was north and west of the center of said intersection; that it was about 12 feet northwest of the center of the street; and that she determined that distance by measurement.

Jack Ashley, a police officer for the City of Phoenix, who operated a traffic investigation car, testified that the Gardner car was about 10 feet through the center of the intersection of the streets at the time of impact. Ashley further testified that the Lemke car was damaged on the "left front", the "left side", and stated that the Gardner car was damaged on the front of the car or the right side. Ashley also testified, when asked if he observed the skid marks of the Lemke car on the pavement, that the marks began back someways above the north curb of Pierce Street, and stated that the entire skid mark before the ...


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