6 Cal. App. 2d 409 | Cal. Ct. App. | 1935
The plaintiff and the defendant while driving their automobiles met with a collision at the intersection of California Street and Alcatraz Avenue in Berkeley. For injuries sustained in the accident the plaintiff commenced this action. The jury returned a verdict in favor of the defendant. The plaintiff made a motion for a new trial but his motion was denied. From the judgment entered in favor of the defendant the plaintiff appealed and has brought up a bill of exceptions.
The plaintiff contends that the trial court abused its discretion in denying the plaintiff’s motion for a new trial upon the ground of newly discovered evidence. This contention he divides into several different arguments. The defendant replies that the ruling of the trial court may not be disturbed on appeal except that the trial court did abuse its discretion and that an abuse of discretion is never pre
The first reason assigned by the defendant is that the order was properly denied because the plaintiff did not make a sufficient showing that he had used reasonable diligence to discover the evidence which, on his motion for a new trial, he claimed to be newly discovered evidence. An understanding of that point requires a brief statement of facts.
The accident occurred on the sixth day of January, 1934, •at about 11:20 A. M. The complaint was filed February 16th, a little over one month thereafter. On the 17th of May the trial commenced in the city of Oakland and continued during the three days following. The record discloses that the intersection in which the accident occurred is located in closely built up territory. On the southwest corner of the intersection stands a building that is occupied in part as a bakery. A glass door is set in diagonally at the street corner. There are windows on the side adjacent to Alcatraz Avenue. The bakery is conducted by the Kulik family. On the trial the plaintiff called as witnesses Herman Kulik, Henry Corke, H. C. Spite and Henry Rogers. Each lived in the immediate neighborhood and, excepting Herman Kulik, went to the scene immediately after the accident happened. Herman Kulik testified that at the time of the accident he was on the sidewalk outside of the bakery with his back turned to the street washing the window of the bakery. He did not see the cars until he heard the crash and then looked around. In the very nature of his work Kulik was looking through the glass and into the bakery. No witness was asked to name any person that he saw at the scene of the accident. Kulik was not asked to name who was in the bakery as he stood looking through the windows. No deposition of any witness or party was taken but both the plaintiff and the defendant relied on the examinations made and the reports received from their respective investigators.
The defendant also asserts that the showing made by the plaintiff was such that the trial court may have held, and should have held, that the testimony of Mrs. Kulik and Miss Cummins as shown in the affidavits was incredible. In addition to the facts above stated it should be noted that on the evening of the day the jury returned a verdict both Mrs. Kulik and Miss Cummins notified the plaintiff that they witnessed the accident and on a new trial would appear as witnesses. At that time the plaintiff had testified. In giving his testimony, among other things he testified as follows: “I was driving south on California street. The other car involved was an Auburn cabriolet driven by the defendant. It was traveling toward the east on Alcatraz avenue. In the block north of Alcatraz my speed was approximately 15 or 20 miles per hour. ... As I approached Alcatraz avenue I slowed down. . . . When my front wheels were about at the north property line I saw the Auburn for the first time. It was about 40 to 50 yards to my right. ... I continued through the intersection. My left wheels were about one foot east of the westerly south bound rail as I passed through the intersection. My speed through the intersection was about 10 to 12 miles per hour. . . . When my front wheels were about 5 feet south of the
Finally, the defendant contends that the newly discovered evidence was “ . . . simply cumulative or designed to contradict the witness” Wright and was not sufficient to support a motion for a new trial. (People v. Anthony, 56 Cal. 397, 399.) That contention is sound. In the case of People v. Granillo, 140 Cal. App. 707, at page 719 [36 Pac. (2d) 206], the court said: “It is clear that-the testimony of these two affiants, if admitted, would have been contradictory of that of Mrs. Loya and Willie Loya, and cumulative as to that of Mrs. Granillo and Henry Varella. Evidence which is designed to contradict a witness or is merely cumulative is not justification of a new trial. (People v. Anthony, 56 Cal. 397; People v. Weber, 149 Cal. 325 [86 Pac. 671]; People v. Loveless, 140 Cal. App. 291 [35 Pac. (2d) 574].)” But the plaintiff contends when, as here, the conflict in the testimony given by the immediate parties is extremely marked, then the evidence of disinter
In the defendant’s brief the point was made that the record does not show that the plaintiff served and filed a notice of intention to move for a new trial. In response the plaintiff served and filed a motion to augment the record. While the original record is not a model we think it may not be said it is insufficient to present the points made by the plain
For the reasons hereinabove stated the judgment is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 24, 1935, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 20, 1935.