Tom v. Baca , 93 Ariz. 96 ( 1963 )

93 Ariz. 96 (1963) 378 P.2d 912

Roy TOM, by his Guardian Ad Litem, Tom Sarn, Appellant,
v.
Isidrio C. BACA, Appellee.

No. 7222.

Supreme Court of Arizona. In Division.

February 21, 1963.

Hughes & Hughes, Phoenix, for appellant.

Brown & Brash, Phoenix, for appellee.

BERNSTEIN, Chief Justice.

Appellant was plaintiff in a suit for injuries to his minor son. A verdict was directed in favor of the defendant at the close of plaintiff's case and plaintiff appeals from the judgment entered on that verdict.

The minor plaintiff was walking on a path beside a dirt road. The defendant was driving down the road pulling a trailer. The trailer broke loose and hit the minor plaintiff. The officer who investigated the accident testified that he could not remember the facts of the accident and that his accident report did not refresh his recollection. From his accident report be was able to testify, however, that the trailer broke loose because of a faulty trailer hitch and that the report contained an accurate condition of the trailer hitch.

Appellee has not favored us with a brief and this case has been submitted for decision under Rule 7(a) 2, Rules of the Supreme Court, 17 A.R.S. We have recently held that:

"* * * where debatable issues were raised by the appeal, we will assume failure to file an answering brief is a confession on the part of the appellees of reversible error." Nelson v. Nelson, 91 Ariz. 215, 217, 370 P.2d 952, 953.

Reversed and remanded with instructions to enter an order for a new trial.

UDALL, V.C.J., and STRUCKMEYER, J., concur.