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Schmerfeld v. Hendry

Supreme Court of Arizona

June 16, 1952

SCHMERFELD
v.
HENDRY et al

Judgment affirmed.

W. E. Ferguson, of Holbrook, for appellant.

Struckmeyer & Struckmeyer, of Phoenix, and Guy Axline, of Holbrook, for appellees.

De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.

OPINION

De Concini, Justice.

Page 421

[74 Ariz. 160] This is an action by Walter T. Schmerfeld, the father and legal guardian of Theodore Schmerfeld, Jr., an infant, against A. C. Hendry and wife, owners of an automobile driven by their 16-year-old son Robert Hendry, also a named defendant. The action is one for damages for injury caused by the car striking the infant(hereafter referred to as the boy), who was 27 months of age.

The facts briefly are that Robert was driving the family car north on Williamson Street in Winslow, on May 25, 1950, about noon on a clear day. He was proceeding about 17 miles per hour and had just crossed Oak Street about 50 feet north of the curb line when the impact occurred. There were no eyewitnesses to the accident except Robert and his sister who were the only passengers in the car. Neither of them saw the boy until they were suddenly upon him. The rear of the front fender of the car struck the boy. It is the plaintiff's contention that Robert was negligent in not seeing the boy. It is the defendants' position that Robert was without fault because the boy stepped off the curb and ran into the side of the car. There were 20 witnesses called, 3 of whom were medical experts.

The jury returned a verdict in favor of defendants upon which a judgment was [74 Ariz. 161] rendered. Plaintiff appeals from the judgment and the court's refusal to grant a new trial. Plaintiff assigns eight errors of the trial court.

The first assignment is based on the affidavit of the mother, made and filed several weeks after the trial, that she overheard one of the jurors joking about the child carrying his little pillow at the trial; that the juror said, "I guess I had better bring my little pillow", and the juror had what appeared to be a laughing sneer on his face at the time.

Prejudice is not presumed. We fail to see any prejudice in the case because of the remark made. Furthermore no objection was made nor was it called to the court's attention at the time of trial, therefore it is waived. Northern Arizona Supply Co. v. Stinson, 73 Ariz. 109, 238 P.2d 937; Southern Arizona Freight Lines, Ltd., v. Jackson, 48 Ariz. 509, 63 P.2d 193.

The second assignment is based on the misconduct of one of defendants' attorneys in his closing remarks to the jury. There is no record as to what the attorney said. However it appears by affidavit that he said, that if plaintiff's contentions are true, then this was a case for criminal action for reckless driving. Plaintiff made no objection to the statements at the time, which if made would have given the trial court the opportunity to instruct the jury to disregard the remarks. The general rule is that when no objection is made at the time the ...


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