Rehearing Denied Nov. 29, 1955.
[79 Ariz. 337] McCarty & Chandler, Tucson, for appellant.
W. Shelley Richey, Douglas, for appellee.
This is an appeal from an order granting plaintiff's motion for a new trial.
The facts are that plaintiff-appellee, Ben H. Marcione, brought an action against his brother, Conrad Marcione, defendant-appellant herein, for the recovery of damages for injuries alleged to have been sustained as the proximate result of driving his automobile while plaintiff-appellee was a passenger therein 'in such a careless and negligent manner as to cause the same to overturn thereby inflicting severe and painful injuries upon the person of plaintiff.' The accident is alleged to have occurred on the Tucson-Nogales highway on November 1, 1953. The parties hereto will be hereinafter designated as plaintiff and defendant.
The answer admits that plaintiff was a passenger in defendant's automobile driven by him at the time and place alleged in the complaint; that an accident occurred; that plaintiff was injured to some extent
and denies generally the remaining allegations of the complaint. This, of course, included[79 Ariz. 338] a denial of the allegation of negligence set forth in the complaint.
The cause went to trial on these issues and at the close of plaintiff's case the court granted defendant's motion for an instructed verdict and thereupon, on motion of counsel for defendant, entered judgment in his favor.
The plaintiff in due course filed his motion for a new trial and the court granted said motion and ordered a new trial upon the ground that the court believed the allegations of negligence in the complaint were sufficient to cover the specific act or acts of negligence proved or attempted to be proved and that there was sufficient evidence at the close of plaintiff's case to take the case to the jury under the allegations of the complaint.
From this order defendant appeals and presents three assignments of error for our consideration as follows:
1. The trial court erred in granting plaintiff's motion for a new trial for the reason that all the evidence construed most strongly in favor of plaintiff failed to prove facts that would justify a finding by the jury that defendant was guilty of negligence in operating a motor vehicle known to be in a dangerous condition.
2. The trial court erred in granting plaintiff's motion for a new trial for the reason that all of the evidence construed most strongly in favor of plaintiff failed to establish facts from which the jury would be justified in inferring that plaintiff's (he means defendant's) alleged negligence was the proximate cause of plaintiff's injury.
3. The trial court erred in granting plaintiff's motion for a new trial for the reason that the allegation in plaintiff's complaint that 'defendant drove said automobile in such a negligent and careless manner as to cause the same to overturn, * * *' is insufficient to permit the submission to a jury of the question of defendant's negligence in permitting the plaintiff to ride in a mechanically defective vehicle without warning plaintiff of the defect.
We will consider assignment No. 3 first because we believe the disposition of the question therein raised will effectually dispose of the other assignments of error.
It will be observed that the complaint sets forth that at the time and place alleged in the complaint 'the defendant drove said automobile in such a careless and negligent manner as to cause the same to overturn thereby inflicting severe and ...