Rehearing Denied April 16, 1952.
Reversed and remanded with instructions.
Stockton & Karam, of Phoenix, for appellant.
Carl Tenney, of Phoenix, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[73 Ariz. 345] This is an appeal from a judgment of the superior court of Maricopa County; from an order denying appellant's motion to have the verdict and judgment entered thereon set aside; and from an order denying appellant's motion for a new trial.
The cause of action arose out of a motor vehicle accident occurring on East Baseline Road near Phoenix on November 11, 1948, in which appellee's intestate was killed while riding in a truck driven by appellant. Appellant was driving his truck in an easterly direction on the Baseline Road and collided with a Chrysler car driven by J. D. Collins traveling in a westerly direction on said road. The collision occurred near Tovrea Drive.
Appellee in her complaint relied upon an allegation of general negligence but in response to an order for a bill of particulars she specifically alleged that appellant was driving his truck while intoxicated which rendered him incapable of properly managing it; that his intoxicated condition impaired his judgment to the extent that when confronted with an emergency he was unable to, or failed to manage his vehicle so as to avoid the collision in which appellee's intestate was killed; that immediately preceding the collision he was driving his truck from one side of the road to the other and was not keeping
a proper lookout for other traffic on the highway.
Appellant in his answer denied each and all of the allegations of negligence alleged in the complaint as amended by the bill of particulars. The cause was tried to a jury and resulted in a verdict for appellee and the judgment entered thereon from which this appeal is prosecuted.
Appellant has presented eleven assignments of error, the first five of which are directed at the alleged insufficiency of the evidence to justify the verdict and judgment rendered. We will direct our attention to these assignments first and will consider them together. This, of course, calls for an analysis of the evidence.
The specific act of negligence upon which appellee rests her case is that appellant was intoxicated at the time and incapable therefore of properly managing the motor vehicle he was driving and that his intoxication impaired his judgment to the extent that he was ...