Glass v. Carlberg

STEVENS, Chief Judge. The jury returned its verdict in favor of the defendants in this personal injury action. Judgment was entered on the verdict, a motion for new trial was denied and this appeal was taken. The plaintiffs Glass were proceeding in a westerly direction on Indian School Road in Phoenix in the evening of a dry clear day. The traffic to the west was impeded. The Millward car was immediately ahead of the Glass car in the same traffic lane and the car of the defendant Carlberg was to the immediate rear of the Glass car. There is some conflict in the evidence as to whether the Glass car stopped gradually or rapidly. When the Glass car was stopped or moving very slowly, it was struck from the rear by the Carlberg car and was propelled forward into the Mill-ward car. Carlberg stated that his foot slipped off the brake pedal and possibly touched the accelerator and that before he could re-brake and bring his car to a stop, [402] the collision occurred. He further stated that but for his foot having slipped off the brake pedal, he could have stopped his vehicle without any contact with the Glass car. There was no evidence to indicate that Carlberg was an inattentive driver. The plaintiffs allege that this fact situation establishes that Carlberg was negligent as a matter of law. We do not agree. His negligence was a question of fact to be resolved by the jury. It is urged that the court erred in failing to give two of the plaintiffs’ requested instructions. We have examined the reporter’s transcript and the instructions and we are of the opinion that the issue as to the defendant’s negligence was properly covered by the instructions. It is our opinion from the examination of the entire record that there was a fact question as to liability which was resolved by the jury. It is our opinion that the trial judge sitting as a 13th juror acted within the proper limits of judicial discretion in denying the motion for new trial. On appeal, we viewed the evidence in the light most favorable to the sustaining of the verdict and the sustaining of the order on the motion for new trial. Snyder v. Beers, 1 Ariz.App. 497, 405 P.2d 288 (1965). The judgment.is affirmed. CAMERON, J., concurring.