54 Cal. App. 2d 719 | Cal. Ct. App. | 1942
This action arose out of a collision between an automobile driven by the plaintiff and another car owned by the defendants and driven by Mrs. Schmoker. A jury returned a verdict in favor of the defendants and the plaintiff has appealed from the judgment.
The collision occurred at the intersection of two country roads. Mrs. Schmoker was driving north on one road with the intention of making a right-hand turn and proceeding easterly on the other road. As she reached the intersection she stopped, looked both ways and, putting her car in low gear, entered the intersection and proceeded to make a right-hand turn. As she entered the intersection and was making this turn the Adams car was approaching the intersection from the west. Adams testified that he saw the other car as it approached the intersection; that he was 100 to 150 feet away from the intersection or "some place like that” when the other car stopped; that he turned his attention to anpther car which was coming toward him ; that he did ppt
The appellant makes no contention that the evidence, if believed, is not sufficient to sustain the verdict, but it is argued that the testimony of Mrs. Schmoker and her son, who was riding with her, is so incredible that it must be disregarded. It is argued that it is incredible that the Adams ear could have come up behind the other car after it had completed its turn and, in passing that car, have missed its rear end but cut in and hooked its front bumper. While a part of the respondents’ evidence indicated that their car had completed its turn, a large part of that evidence was to the effect that that car was being turned at the time in question and that the turn had almost but not quite been completed. Under such circumstances,' it is not inherently unreasonable or incredible that the left front bumper of a turning car should be caught by the right rear fender of another car which passed too close or which cut in too soon. It is also argued that the mere hooking of this bumper by the appellant’s right rear fender could not have had the effect of causing the appellant’s ear to swerve, bounce and roll over. This involves many factors, including the speed of the Adams
A motion for a new trial was not passed upon by the trial judge within the time allowed, with a resulting denial by operation of law. The appellant contends that a new trial should have been granted because the affidavits presented not only show due diligence but disclose newly discovered evidence which was material and which indicates that the result would be different on a new trial. It may first be observed that the showing of due diligence is not very strong. One of the witnesses now desired to be produced was a witness at the trial and no reason appears why the evidence he would now give was not then available. Two other such witnesses are traffic officers who visited the scene of the accident shortly after the collision, and no valid reason is given for failing to call them. With respect to the other witnesses now sought to be produced, it appears that the appellant discovered them through advertisements in newspapers after the trial was concluded. No reason is given for not having earlier used this method which later proved effective. (Putnam v. Pickwick Stages, 98 Cal. App. 268 [276 Pac. 1055].)
With respect to its substance, the testimony which it is now sought to produce is merely cumulative and it does not appear that it could reasonably be expected to change the result. So far as material to the facts of the case, the main thing the appellant thinks he could establish by these new witnesses is that the point of impact of the two vehicles was within the intersection and not a few feet easterly therefrom.
The judgment is affirmed.
Marks, J., and Griffin, J., concurred.