Stroh v. Bauman

MARKS, J.

This is an appeal from a judgment entered on the verdict of a jury in favor of defendant in an action for damages for injuries suffered by plaintiff as a result of having been struck by defendant’s automobile and thrown to the pavement. The collision occurred at or near the intersection of Lime and Seventh Streets in the city of Riverside. Plaintiff has also attempted to appeal from the order denying her motion for new trial. Such an order is not appeal-able. (Sec. 963, Code Civ. Proc.)

Lime and Seventh Streets intersect at right angles with the latter running east and west. A pedestrian lane was marked

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across Seventh Street in prolongation of the easterly curb and property lines of Lime Street.

Plaintiff, and three disinterested witnesses, testified that at about 7 o’clock on the evening of November 7, 1937, she was crossing Seventh Street from south to north in the pedestrian lane just mentioned. Two of these disinterested witnesses testified that they saw the automobile driven by defendant traveling east on Seventh Street; that it ran into plaintiff while she was in this pedestrian lane; that the impact hurled her twenty-five or more feet to the east where she •landed on the pavement. Plaintiff and two of these witnesses testified that she looked to the east and to the west for approaching traffic before stepping 'into the roadway of Seventh Street.

The foregoing evidence is contradicted by the testimony of defendant. His story was that after he had crossed the intersection and the pedestrian lane a number of feet and was proceeding at not more than twelve miles an hour with the headlights of his automobile illuminated, plaintiff suddenly appeared a foot, or slightly more than a foot, in front of his

automobile;

that he could not stop in time to prevent hitting her.

While it appears to us from a study of the record that there is a great preponderance of the evidence supporting plaintiff’s contention that she was hit in the pedestrian lane, still the jury evidently believed the story of defendant that she was crossing Seventh Street some distance east of the pedestrian lane and was outside of it when hit. Further, the trial judge was sitting as a thirteenth juror when hearing the motion for new trial, and as such thirteenth juror, weighed the evidence and placed his stamp of approval on defendant’s testimony. There is nothing inherently improbable in the description of the accident as given by defendant. It could have happened exactly as he described it. Therefore, as the jury and the judge accepted the testimony of defendant as true, we are required to conclude that we have here a simple case of a conflict in the evidence which the triers of fact have resolved against plaintiff. Under such circumstances our opinion on the weight of the evidence can be of no assistance to either party.