Hargrave v. Acme Tool & Tester Co.

WHITE, P. J.

After the second trial of the instant action and verdict rendered for plaintiff for $50,000 for personal injuries suffered while working in the crew conducting a water shut-off test of an oil well, defendants moved for judgment notwithstanding the verdict. Those motions were denied. Defendants then moved for a new trial on all grounds applicable to jury trials and those motions were granted “on the ground of the insufficiency of the evidence to justify the verdict.”

Plaintiff has appealed from the order granting the motions for a new trial, and, as contended by respondents, by reason of plaintiff’s said appeal, the order denying defend

[471]

ants’ motions for judgment notwithstanding the verdict may be reviewed on this appeal. (Code Civ. Proe., § 629;

Estate of Green,

25 Cal.2d 535, 545 [154 P.2d 692].)

Appellant urges two grounds for reversal: (1) that the doctrine of the law of the ease requires it; and (2) that the trial judge abused his discretion in granting the new trial.

After plaintiff’s evidence had been introduced in the former trial, judgment for defendants followed the granting of their motions for nonsuit. That judgment was reversed by this court

(Hargrave

v.

Acme Tool & Tester Co.,

125 Cal.App.2d 34, 40 [269 P.2d 913]) for the reason that the evidence was sufficient to raise a question of fact to be decided by the jury and that a motion for nonsuit should be granted only when there is no substantial evidence to support a verdict in favor of plaintiff.

(Seneris

v.

Haas,

45 Cal.2d 811, 821 [291 P.2d 915].) After the decision of this court upon said former appeal, hearing was denied by the Supreme Court.