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City of Phoenix v. Brown

Supreme Court of Arizona

June 1, 1960

CITY OF PHOENIX, a municipal corporation, Appellant,
Margaret BROWN and Lonnie W. Brown, husband and wife, Appellees.

Page 755

[88 Ariz. 62] William C. Eliot, former City Atty., George Mariscal, John F. Mills, Merle L. Hanson, Anis Mitchell and Charles A. Filler, Asst. City Attys., Phoenix, John R. Franks, Phoenix, present City Atty., for appellant.

Douglas O. Peterson, Phoenix, for appellees.

PHELPS, Justice.

This is an appeal from a judgment rendered in accordance with the jury's verdict against the defendant-appellant, the City of Phoenix, and in favor of the plaintiffs-appellees, Margaret Brown and her husband, Lonnie W. Brown, and from the order denying the city's motion for a new trial. The suit was brought by Margaret Brown, with her husband being joined as plaintiff, to recover money damages for injuries received as a result of a fall she suffered on a downtown city street. Margaret Brown will hereinafter be referred to as plaintiff and the defendant-appellant as the city.

The facts, stated in a light most favorable to sustaining the judgment, are as follows: sometime shortly after noon on May 1, 1956, the plaintiff was walking in a southerly direction at the intersection of Second Street and East Washington in the City of Phoenix. She was accompanied by her brother-in-law Jack Brown and his wife, Vermell Brown and their children. They were waiting for the stop light to change before entering the westerly corsswalk in order to proceed with their shopping at the J. C. Penney store on the opposite corner. Several rows of people were standing in front of them, and as the light changed and they began to move forward, plaintiff's toe caught in a small hole at that point where the asphalt cement of the street and the concrete curb join. In an effort to catch her balance, she took several rapid steps forward and fell near the center of the street. The city police who were summoned,

Page 756

took her to Memorial Hospital where she was examined and given first aid. Because the intern at the emergency center [88 Ariz. 63] there did not believe her injuries were serious, she was released.

Upon subsequent examination however by her family physician, Dr. Rothman, it was determined that her injuries were of a serious nature. For example, Dr. Rothman testified that she suffered a cerebral concussion, a severe contusion of the right lateral scalp, continuous severe pain of the lower lumbosacral spine with severe muscle spasticity, left-sided sciatica, and a marked weakness of the left lower extremity. Dr. Rothman also testified that plaintiff became 'extremely weak, dizzy, somewhat uncoordinated in speech, walked in with difficulty and had difficulty controlling her left lower extremity.'

The city complains that five prejudicial errors were committed by the trial court. We will consider these assignments separately in the order of their presentation.

The city's first assignment of error is that the court refused to direct a verdict in its favor at the close of plaintiff's case and again after the presentation of all the evidence. Two reasons are assigned which we shall consider in turn. The first refers to the testimony of Jack Brown, plaintiff's brother-in-law, concerning the age of the hole in which plaintiff tripped. The city contends that an insufficient foundation had been laid for the admission of his testimony in that there had been no connection between this witness' testimony and the hole allegedly causing plaintiff's injuries. This contention is refuted by the reporter's transcript which shows that Vermell Brown, Jack Brown's wife, saw the hole and saw plaintiff trip in it. Vermell Brown specifically located the hole after plaintiff was taken to the hospital. She described it and stated that she and Jack Brown examined it together. And the testimony of each of these witnesses fully corroborates the other in these respects.

It is further argued by the city that the witness Jack Brown was not qualified to give his opinion as to the age of the hole since he had testified that his experience was as follows:

'Well, I have done a little bit of asphalt, filling holes, and I have done concrete work, foundation. I haven't done any street work, but I have filled holes and the other.'

In Allied Van Lines v. Parsons, 80 Ariz. 88, 293 P.2d 430, 433, this Court said:

'* * * it is well-settled law in this jurisdiction that the question of whether an expert witness is competent is a matter that rests in the sound judicial discretion of the trial court. Gils Valley, G. & N. R. Co. v. Lyon, 1905, 9 Ariz. 218, 80 P. 337; Arizona Superior Mining Co. v. Anderson, 1927, 33 Ariz. 64, 262 P. 489; Wigmore on Evidence, Vol II, Section 561. * * *'

[88 Ariz. 64] We do not find such an abuse of discretion in the instant case. In addition to the above testimony of Jack Brown that he had worked with asphalt, filling holes and that he had done concrete foundation work, he also testified that he had experience in observing asphalt and its characteristics as to spreading, holes, and age. While this witness did not have the best possible qualifications nor the highest degree of skill or knowledge, he did possess skill and knowledge superior to that of men in general. Thus, as pointed out by the trial court at the time this testimony was admitted, the lack of the highest degree of skill or qualification of an expert witness goes to the weight of his testimony rather than to its admissibility. Wray v. Fairfield Amusement Co., 126 Conn. 221, 10 A.2d 600; Cincinnati St. Ry. Co. v. Hickey, 29 Ohio App. 399, 163 N.E. 310.

But a more patent defect is present in the city's first assignment of error. The admission of this witness' opinion testimony was not itself assigned as error, but it is cited as a reason why the trial court erred in denying the ...

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