16 Cal. App. 2d 593 | Cal. Ct. App. | 1936
The defendant has appealed from an order granting a new trial on the ground of lack of evidence to support the judgment which was rendered in his favor pursuant to the verdict of a jury in a suit for personal injuries which were sustained by the plaintiff m an automobile collision.
The appellant contends that the order granting a new trial should be reversed for the reason that the court failed to specify therein, as required by section 657 of the Code of Civil Procedure, that it was allowed for the insufficiency of the evidence, and that the court abused its discretion in granting a new trial.
The record contains a substantial conflict of evidence regarding the circumstances surrounding the accident in question. About 7:30 to 8 o’clock on the evening of May 16, 1933, the plaintiff and defendant were traveling south in separate machines along the state highway between St. Helena and Napa. It was dark, and their lights were burning. The defendant was driving alone at the rate of approximately 45 miles an hour. His home was-situated several miles south of St. Helena, adjacent to the highway on the easterly side thereof. The roadway entered his premises by means of a narrow lane at a right angle to the state highway. The plaintiff’s car was following the defendant’s machine. A young man by the name of Canter rode with the plaintiff. The plaintiff testified that he overtook the defendant’s machine a-short distance northerly of the lane leading to the defendant’s premises. He did not know that the defendant lived there, and he had no intimation that the defendant was go
We are of the opinion there is no merit in this appeal. The motion for new trial was made on the ground of the insufficiency of the evidence to support the verdict and judgment. It is true that the minute order which was originally entered April 2, 1934, failed to specify the fact that the'new trial was granted on that ground. Under the provisions of section 473 of the Code of Civil Procedure, the court, on its own motion, subsequently amended that order to correct the clerical error which occurred in the entry thereof, and specifically provided that the motion for new trial was granted "upon the ground of the insufficiency of
”... The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, ...”
It does not appear that the court abused its discretion in granting a new trial under the circumstances of this case. There is a substantial conflict of evidence regarding the material facts of the case. The trial judge is in so much better position to judge of the weight and sufficiency of the evidence and the credibility of the witnesses than is the court of appeal that an order granting or refusing a new trial will not be disturbed unless it appears very clearly that he abused his discretion in that regard. That is the invariable rule which is followed on appeal. (Rosenberg v. Moore & Co., 194 Cal. 392 [229 Pac. 34]; Collins v. Hodgson, 5 Cal. App. (2d) 366 [42 Pac. (2d) 700] ; Hollingsworth v. Pemberton, 138 Cal. App. 261, 265 [31 Pac. (2d) 1063] ; Boness v. Helphinstine, 132 Cal. App. 677 [23 Pac. (2d) 420]; 2 Cal. Jur. 905, sec. 533.)
The order granting a new trial is affirmed.
Plummer, J., and Pullen, P. J., concurred.