61 Cal. App. 2d 712 | Cal. Ct. App. | 1943
Defendant appeals from the order granting plaintiff’s motion for a new trial. The motion was granted upon the sole ground “that the verdict is against the law.”
The action was for damages for personal injuries sustained
Plaintiff testified that he was within the pedestrian crosswalk; that before stepping from the curb into the crosswalk, he had first looked over his left shoulder to ascertain whether any vehicles coming south on Cahuenga were going to make a right-hand turn; that he saw none and stepped from the curb about the center of the crosswalk; that he proceeded at his “usual gait” to a point about 7 feet “north of the northerly (streetcar) track,” when he again looked to see whether any traffic “coming from the south on Cahuenga” was going to make a right-hand turn; that he saw none and proceeded about 2 feet more when he “happened to look across” his left shoulder and saw a car turning which struck him; that he was on his way to a curio store on the south side of Hollywood Boulevard about one and one-half blocks west of Cahuenga; and that he was “quite close” to the western boundary of the crosswalk when he was struck. He further testified that he was wearing a “powder blue” suit and a gray overcoat at the time he was struck; and that there were not “many pedestrians or much traffic crossing” at the time of the accident.
Defendant testified that he did not see plaintiff until the impact; that there was no one coming from either direction in the “pedestrian zone” when he made the right turn; that he struck plaintiff at a place on the pavement between 20 and 30 feet west of the pedestrian crosswalk; that plaintiff was wearing a dark coat, but he “wouldn’t say it was or was not”
A deposition of one of the two men who interviewed defendant was read into evidence. It stated that deponent was a court reporter by profession; that he wrote said conversation verbatim in shorthand; that defendant, in describing plaintiff’s position at the time of the accident, made the following statements: “Well, he cut across the crosswalk there, see, and he didn’t cross at the corner, I can’t say where he come from though because I was coming down the street and there he was and I don’t know where he come from,” and “No, I don’t know where he come from because I did not see him until I hit him”; and that defendant stated he (defendant) was going west on Hollywood Boulevard after making a right-hand turn from Cahuenga and “he would say” that he hit plaintiff about two ear lengths west of the crosswalk, but he didn’t know what “the witness” would say because it all happened so fast that he didn’t know where the plaintiff came from.
The deposition of a witness to the accident, who had since moved to Oregon, was read into evidence. The witness stated that she and her sister were walking east on the north sidewalk of Hollywood Boulevard, west of Cahuenga Boulevard, on the night of the accident; that she saw plaintiff “hurrying,” with “more of a running step,” between two cars parked at the north side of Hollywood Boulevard; that plaintiff “just stepped, kind of slipped between the 2 cars and ducked out in front of the other”; that he was wearing dark clothing—as she “recalled,” it was a sweater and slacks; that he was not going straight across the street but was proceeding at a slant in a southwesterly direction; that “he slightly ran,” and “as he stepped from the curb he leaped from the curb”; that she did not see plaintiff until he stepped off the curb; that when she first saw him he was “coming between two cars” not more than 20 feet from the corner; that she believed she observed the pedestrian continuously from the time she first saw him until he was struck; that she saw defendant turn the corner very slowly, approximately 12 to 15
A policeman, who was patrolling Hollywood Boulevard, testified that he arrived at the scene a “few minutes” after the accident; that plaintiff was lying on the pavement and his feet were pointed in a southwesterly direction and his head was approximately 12 to 15 feet from the westerly portion of the crosswalk; that cars were parked along the north curb of Hollywood Boulevard, west of Cahuenga; that traffic was “heavy” that night; that he talked with the witness (who later moved to Oregon) and her sister, who gave their names as witnesses to the accident; and that the witness stated she saw plaintiff walk between the second and third cars parked at the north curb of Hollywood Boulevard, and that she heard but did not see the impact.
Two police officers, who investigated the accident, testified that ears were parked along the north curb of Hollywood Boulevard west of Cahuenga when they arrived at the scene, about five minutes after the collision.
The jury returned its verdict in favor of the defendant, and a judgment was entered in accordance therewith.
Defendant contends that the verdict is not against law, and that the trial court erred in granting the motion for a new trial upon that ground. Plaintiff maintains that the verdict is against law because, as he asserts, the evidence is insufficient to justify the verdict. There are several reasons why plaintiff’s position cannot be sustained. A verdict is against law when it is contrary to the instructions given the jury. No conflict is claimed or appears between the verdict and the instructions. A verdict is not against law merely because the evidence is insufficient to justify it. That a verdict is against law or that it is not justified by the evidence are separate grounds for a new trial. An order granting a new trial on the ground that the verdict is against law cannot be sustained by merely showing that it is unsupported by the evidence. (Brumagim v. Bradshaw (1870), 39 Cal. 24, 35.) It is possible to determine whether a verdict is contrary to an instruction only when the evidence on a point
As an additional reason for holding plaintiff’s argument to be untenable, it will be noted that the record shows, as indicated by references herein, that the evidence was legally sufficient to justify the verdict.
Another reason plaintiff’s position cannot be sustained is that plaintiff’s motion for a new trial did not set forth insufficiency of the evidence as a ground therefor. The order granting the new trial did not specify that it was granted upon the ground that the evidence was insufficient to sustain the verdict; therefore, it will be conclusively presumed that the order was not based upon that ground. (Code Civ. Proc., sec. 657, as amended 1939; Dempsey v. Market Street Ry. Co. (1943), 23 Cal.2d 110 [142 P.2d 929] ; Lewis v. Southern California Edison Co. (1931), 116 Cal.App. 44, 49 [2 P.2d 419].) Sufficiency of the evidence is not an issue on this appeal.
Another ground set forth in plaintiff’s motion for a new trial, and urged upon appeal, is error in law occurring at the trial and excepted to by plaintiff. The fact that the court granted the motion for a new trial upon the one ground, “that the verdict is against the law,” does not preclude an examination of other grounds set forth in the motion for a new trial in this case which, as above stated, did not include insufficiency of the evidence. (Weddle v. Loges (1942), 52 Cal. App.2d 115, 120 [125 P.2d 914]; C. Lomori & Son v. Globe Laboratories (1939), 35 Cal.App.2d 248, 251 [95 P.2d 173] ; Reilley v. Mclntire (1938), 29 Cal.App.2d 559, 562 [85 P.2d 169]; Weisser v. Southern Pacific Ry. Co. (1906), 148 Cal. 426, 428 [83 P. 439, 7 Ann.Gas. 636].) It was stated in Gray v. Bobinson (1939), 33 Cal.App.2d 177, at page 180 .[91 P.2d 194] : “The reasons given by a trial judge in support of an order which sets forth the ground or grounds on which the motion is granted are no concern of this court where adequate grounds
Two other grounds for a new trial included in plaintiff’s motion were: newly discovered evidence; and surprise and excusable neglect. No affidavits were filed in support thereof and it will not be necessary to consider such grounds. The other ground specified in plaintiff’s motion, that the judgment is against law, need not be discussed inasmuch as the statements made herein concerning the ground that the “verdict is against the law” are applicable thereto.
Although the presumption is in favor of the order and against the verdict upon an appeal from an order granting a new trial (Lucerne Country Club v. Beal (1937), 21 Cal.App. 2d 121, 124 [68 P.2d 408]), an examination of the record herein shows that the order granting the motion for a new trial cannot be sustained.
The order granting the motion for a new trial is reversed.
Shinn, Acting P. J., and Shaw, J. pro tern., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied February 7,1944.