Charles A. MATTINGLY and Anne R. Mattingly, husband and wife, Appellants,
Ida EISENBERG, individually, and Ida Eisenberg, Executrix of the estate of Harry Eisenberg, Deceased, Appellees.
[79 Ariz. 136] Charlie W. Clark, Laney & Laney, Phoenix, for appellants.
John M. Levy, Moore & Romley, Phoenix, for appellees.
This is an appeal from a judgment in favor of Ida Eisenberg and Harry Eisenberg, her husband, plaintiffs-appellees, and against Charles A. Mattingly and Anne R. Mattingly, husband and wife, defendants-appellants, for personal injuries suffered by Ida Eisenberg as a result of the alleged negligent operation of an automobile by defendant Charles A. Mattingly, and from an order denying defendants' motion for a new trial. For convenience the parties will hereinafter be referred to as plaintiffs and defendants.
On November 25, 1952 at about 6:30 p. m. defendant Charles A. Mattingly was driving an automobile east on Thomas Road at its intersection with 16th Street and struck the plaintiff Ida Eisenberg near the [79 Ariz. 137] center of Thomas Road and east of the intersection of the east street line of 16th Street.
Plaintiff was walking in a northerly or northwesterly direction across Thomas Road at the time. There is a conflict in he evidence as to whether she was in or near the crosswalk along the east line of the intersection of 16th Street with Thomas Road provided for the use of pedestrians in crossing Thomas Road at that point, or whether she was some distance to the east thereof. It was dark at the time but the lights at the intersection were lighted and enabled persons in the use of said highway to see the surrounding area including other persons on the highway. Defendant says plaintiff was dressed in dark clothing and in one statement he said she was only 20 feet from him when he first saw her and that she was then hear the center of Thomas Road. Immediately following this statement he said he saw her and applied his brakes at a point 15 feet west of the east intersection line of 16th Street and Thomas Road and that she was 30, 35, or maybe 40 feet east of the crossealk on the east side of 16th Street. Other witnesses testified that she was either approximately in the crossealk or that she was within five or ten feet thereof.
The complaint charges that he was at the time and place under the influence of intoxicating liquor. Defendant admits having had a drink. Two witnesses testified he tole them he had taken two drinks just before leaving the office. Two witnesses testified he seemed to weave a little in his walking. Several witnesses on the other hand testified they would not have known he had had a drink if they had not smelled intoxicants on his breath, that except for being excited he appeared to be normal. A drunkometer test to which he voluntarily submitted showed a blood content of alcohol by weight of .238 percent.
Defendants have assigned five alleged errors upon which they rely for reversal. First they say that it was reversible error for the court to have given the following instruction:
'Section 54 of the Uniform Act provides that it is unlawful for any person who is under the influence of intoxicating liquor to drive or to be in actual physical control of any vehicle within this state. This section also provides that it shall be presumed that the driver was under the influence of intoxicating liquor if there was at that time .15 percent or more by weight of alcohol in the defendant's blood.
'If you find from a preponderance of the evidence that the defendant Charles Mattingly violated the foregoing provision of law then I instruct you that he was guilty of negligence and if you find that such negligence was the proximate cause of the injury sustained by Ida Eisenberg then your verdict must be for the plaintiffs and against the defendants.'
[79 Ariz. 138] The instruction is based upon section 66-156, 1952 Supp., A.C.A.1939, which creates
a presumption in a prosecution for the offense defined in that Act where a blood, urine or breath test shows certain percentages of alcohol to be present.
Plaintiffs contend that defendants' objection to the above instruction was not sufficiently specific to focus the precise nature of the alleged error. We cannot agree with this contention. Defendants pointed out that it violated the constitution prohibiting comment on the evidence and that the instruction was a comment on the evidence. To hold that the trial judge did not pinpoint the comment on the evidence to that portion of the statute creating the presumption of intoxication when a certain percentage of alcohol by weight is found to be present in the blood would constitute an unpardonable reflection upon the intelligence of the trial judge. The fact that the objection stated other grounds therefor which were untenable is immaterial.
We held in State v. Harold, 74 Ariz. 210, 246 P.2d 178, in a prosecution for driving while under the influence of intoxicating liquor that the above act was constitutional and we held in State v. Childress, 78 Ariz. 1, 274 P.2d 333, 337, where the defendant was similarly charged that the court violated no constitutional right of defendant in reading this statute to the jury. The court said:
'* * * In reading the statute the judge was performing his mandatory duty in instructing the jury upon the law of ...