Michael D. BEAN, a Minor by Gleason Bean, his Guardian ad litem, and Gleason Bean, Appellants,
Francis L. GORBY, Appellee.
[80 Ariz. 26] Alan Philip Bayham and Raymond Huffsteter, Phoenix, for appellants.
Shimmel, Hill & Cavanagh, Phoenix, for appellee.
This is an appeal from an order made and entered March 8, 1954, denying plaintiffs' motion for a new trial. Strange as it may seem, there is no appeal from the judgment entered in the case. It appears, however, that under the provisions of section 21-1702, A.C.A.1939, an appeal will lie from an order denying a motion for a new trial. Merrill v. Wheeler, 17 Ariz. 348, 152 p. 859; Pacific Finance Corp., of Cal. v. Morrow, 76 Ariz. 207, 262 P.2d 247. The Motion for a new trial in the instant case, omitting the title, reads as follows:
'Comes Now the Plaintiffs and move the Court for an order setting aside the verdict of the jury and the judgment of the Court entered thereon, and for an order granting to the Plaintiffs a new trial for the following reasons:
'1. Errors in the admission and the rejection of evidence;
'2. Errors of law occurring at the trial or during the progress of the cause;
'3. Errors in the granting of instructions and the charging of the jury over [80 Ariz. 27] the objections of Plaintiffs and in the refusing of instructions which had been requested by Plaintiffs;
'4. Because the verdict and judgment are not justified by the evidence and are contrary to the law;'
The appellant has presented eight assignments of error for our consideration. Only assignment of error No. 8 is directed at the order denying plaintiffs' motion for a new trial. The assignment of error reads as follows:
'The Court erred in refusing to grant appellant's Motion for a New Trial for the reason that appellants were entitled titled to have the jury instructed as to the 'Doctrine of Last Clear Chance' and that a child on the street is not a trespasser, and for all of the other reasons specified in all of the foregoing Assignments of Error."
The instructions referred to in this assignment of error constitute the basis of appellants' assignments of error Nos. 2 and 3. The court will therefore consider assignments of error Nos. 2, 3 and 8 together.
In the consideration of these assignments of error we are circumscribed by the record made by appellants in the superior court in the trial of the case. Section 21-1019, A.C.A.1939, provides in part:
'* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *"
An examination of the transcript of evidence discloses that appellants interposed the following objection to the instruction on the doctrine of last clear chance, which ...