Hendricks v. Pappas

BRAY, J.

As shown by the citation in their opening brief of

Bayley

v.

Souza,

55 Cal.App.2d 776 [131 P.2d 584], defendants are aware of the rule that binds this court on an appeal from an order granting a new trial where granted, as here, on the insufficiency of the evidence. “The law is well settled that where there is a substantial conflict in the evidence upon disputed issues which are material to the determination of the question of liability, the trial court may exercise its powers to set aside the verdict of a jury and order a new trial; and that under such circumstances its order will not be disturbed on appeal.” (P. 778.) In view of that awareness, it is difficult to understand why this appeal has been brought.

[776]

The action is for injuries claimed to have been received by plaintiff, a pedestrian, when struck by an automobile driven by the defendant Theophanes Pappas, then a minor of the age of 18 years. The defendants Gust Pappas and Eliza Pappas (sued as Jane Doe Pappas), parents of Theophanes, are joined as defendants because they signed his application for a driver’s license. However, for convenience, Theophanes will hereinafter be referred to as the sole defendant.

There were no eyewitnesses to the accident except the parties involved. The accident took place on March 26, 1945, at 9:30 a. m., at the intersection of Sixth and Folsom Streets in San Francisco. Sixth Street runs generally north and south, and Folsom Street east and west. Plaintiff testified that he was walking north on the east side of Sixth Street; that he paused at the southeast corner of Sixth and Folsom for the electrically-operated traffic signal to change; that when the signal changed to “Go” he went straight ahead in the marked pedestrian lane; that he looked straight ahead but not to the left or right; that as he crossed a large truck to his left was going in the same direction up Sixth, at the same speed he was walking, and that it afforded him protection; that when he was hit he was crossing the north streetcar track on Folsom; that after being hit he was picked up from the north streetcar track but had been knocked off the pedestrian lane by defendant’s car; that the car hit him on his left side and that he did not see it until it was right by him and did not observe its speed. There was no truck parked on the north side of Folsom, extending into the pedestrian lane, but there was one parked “by” the lane.