In this case the trial court set aside the verdict of the jury and granted the motion of plaintiff, respondеnt herein, for a new trial upon the ground of insufficiency of the evidence, and newly discovered evidence. Appellant urges such order constituted an abuse of discretion.
*182 The accident with whiсh this litigation is concerned occurred in the afternoon of May 18, 1933, in a business district and at an obstructеd intersection of Third and M Streets in Sacramento. Defendant Rose, as the employee of defendant Bold, was driving a truck southerly on Third Street where it intersects M Street, and plaintiff, a guest, was riding in the front sеat of a Stutz automobile being driven by Mrs. Nourse, easterly on M Street. There was a street car traсk on Third Street and double car tracks on M Street. Plaintiff testified she saw the truck before it entered thе intersection, the Stutz then being about its length in the intersection. She also testified the truck was on the wrong sidе of the street and was traveling about 35 miles per hour and the Stutz traveling about 15 miles per hour. The Stutz, in an аttempt to avoid a collision, was stopped when its front wheels were about two feet beyond the easterly track of the car tracks and was struck by the truck near the left front wheel.
Clyde W. Reid, а witness who was standing on the Third Street sidewalk testified the truck was going about 30 or 35 or maybe 40 miles an hour into the intersection, traveling along the ear tracks in the center of the street. He testified the Stutz entеred the intersection first and stopped with its front wheels four or five feet east of the easterly rail of the Third Street line. The driver of the Stutz testified as to the position of plaintiff in the car, that plaintiff was her guest, and that when she was almost in the middle of. the street she saw the truck enter the intersection going about 35 miles an hour. She stopped, believing the truck would pass either to her rear or in the front. Other witnesses testified to the same effect, all tending to show the Stutz entered the intersection first, but that the truck failed to yield the right of way, the excessive speed of the truck, the fact that it was being driven on thе wrong side of the street, and the failure to turn the truck to the right or the left to avoid the collision. Some of this testimony is contradicted by witnesses called for the defense, but in passing upon a motion for а new trial the trial court becomes the judge of both the weight and sufficiency of the evidence and of the credibility of the witnesses.
(Cooking
v.
Fitch,
*183
It needs the citation of no authority that the trial court is clothed with а wide discretion in passing upon a motion for a new trial. That court had the opportunity, which the rеviewing court did not have, of seeing the witnesses and observing their manner while testifying on the stand, and it was very proper that the trial judge be given such latitude. The rule is laid down in
Erickson
v.
Grady,
In considering a motion such as this we find the trial court is clothed with a wide discretion
(Malloway
v.
Hughes,
Likewise the court was justified in granting a new trial upon the further ground of newly discovered evidence. An order upon that ground is also a matter within the discretion of the court аnd will not be disturbed unless an abuse of discretion is clearly shown
(Waer
v.
Waer,
The accident occurred in May, 1933, but the case did not go to trial until April, 1935. One Lester B. Robinson is claimed to have witnessed the collision from a different angle than that of any of the other witnesses, and it is alleged he *184 would have testified as to the position оf the cars and the speed of each. Affidavits in support of the motion, to which counter-affidаvits were not filed, showed that investigators were employed to locate Robinson in Sacramеnto and in San Francisco but they were unsuccessful. Appellant claimed respondent made nо effort to obtain a continuance of the trial, but as respondent points out, at that time she wоuld have been unable to make an affidavit that the witness would be produced at a given time nor did shе know as to what he would testify if called, and not knowing his whereabouts she was then unable to producе a deposition to be used at a subsequent date if the cause were continued.
Finding no abuse in the discretion exercised by the trial court, the order appealed from is affirmed.
Thompson, J., and Plummer, J., concurred.