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Wiggs v. City of Phoenix9/21/1999
o continue. See id. The proffered evidence need not be probative in all of those respects, and it is admissible if it fairly raises an inference upon one phase of the case. See id. (quoting Gilbert v. Pessin Grocery Co., 282 P.2d 148, 154 (Cal. Dist. Ct. App. 1955)).
It must be shown that the conditions under which the previous accidents occurred were the same or substantially similar to the one in question in order to admit testimony regarding them. See id. at 125-26, 353 P.2d at 892. However, the accidents need not be shown to have occurred under precisely the same circumstances as those in the accident in question as long as they are similar in character. See id. at 126, 353 P.2d at 892 (citations omitted).
The prior accidents plaintiff sought to introduce in this case occurred on March 1, 1993 and May 6, 1993. Plaintiff hoped to use this evidence to show that defendant was on notice that there was a problem with the streetlighting at this intersection.
Plaintiff's offer of proof regarding the March 1, 1993 accident came in the form of an accident report as well as testimony from David Winant. He testified that the accident on March 1, 1993 probably happened between 5:30 p.m. and 7:30 p.m. and that it was very dark. He also testified that the pedestrian was in the crosswalk in the lane closest to the curb, and that the vehicle that struck the pedestrian was travelling eastbound at approximately thirty miles per hour. Winant testified that he did not see the pedestrian until the instance of impact. However, on cross-examination, Winant admitted that when he gave a statement on November 9, 1994, he did not know whether the streetlight was on or off.
The trial Judge made the point that testimony that defendant was on notice could come out through the testimony of Cynecki. Plaintiff argued that Cynecki did not actually witness any accidents, but rather knew of them through complaints made to the City regarding the lighting. In fact, defendant informed the trial Judge that one of defendant's employees, Phil Lindsey, who was primarily in charge of lighting, lived around the corner on 34th Street and that anything that plaintiff wanted to charge defendant with in terms of notice was already known to defendant. Plaintiff later admitted in a conference with the trial Judge and defense counsel that there were no witnesses who could testify that the light was not on at the May 6, 1993 accident but only that the circumstances were similar in that the prior accident occurred at the same time of night after the sun had set.
The trial Judge ruled that since evidence of defendant's actual or constructive notice would come out through the testimony of Cynecki, evidence of the prior accidents would not be admissible. Furthermore, we do not even know whether the streetlight was on or off in the prior cases. Because it was within the trial Judge's discretion to exclude evidence of these two prior accidents at trial, we will not disturb his finding. Therefore, we affirm the denial of a new trial based on the exclusion of the prior accidents because there was other evidence that the City was on notice.
B. Trial Court's Refusal To Grant A New Trial Based On The Alleged Misconduct Of Defense Counsel
A trial court has great discretion in controlling the conduct of a trial. See Taylor v. DiRico, 124 Ariz. 513, 518, 606 P.2d 3, 8 (1980). We will defer to the trial court's ruling on the alleged misconduct of counsel unless it is clear that the trial court abused its discretion. See id. (citing Taylor v. Cate, 117 Ariz. 367, 573 P.2d 58 (1977)). Absent an abuse of discretion resulting in a clear showing of prejudicial error, the trial court'
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