Brinkerhoff v. Ferguson

BARNARD, P. J.

This is an appeal from an order granting a new trial. The three actions were consolidated for trial and on this appeal.

The plaintiffs were injured in a collision between a Ford car, in which they were riding as passengers, and a tractor and semitrailer owned and driven by the defendant. This “truck” was 45 feet long. The collision occurred at 8:15 p.m. on November 5, 1947, in the intersection of Highway 39 and Crescent Road in Orange County. Highway 39, running north and south, is a divided highway with trees and shrubbery between the northbound and southbound traffic lanes, each of which is 11 feet wide. Crescent Road runs east and west and is 27 feet wide.

The plaintiffs were riding with one Boyde, who was traveling south on Highway 39 at a speed of about 50 miles an hour. The defendant had been traveling north on. that highway, and made a left turn in order to go west on Crescent Road. He stopped somewhere in the intersection and saw the lights of the approaching Ford, but misjudged its distance, and then started up and proceeded across the southbound traffic lane. Before he was able to clear that lane the Ford ran into his truck, near its rear end, causing the injuries here involved. A jury returned a verdict in favor of the defendant, the court granted the plaintiffs’ motion for a new trial on the ground of insufficiency of the evidence, and this appeal followed.

The granting of a new trial rests largely in the discretion of the trial judge, and such an order will not be reversed unless an abuse of that discretion clearly appears.

(Stone

v.

Los Angeles Flood Control Dist.,

81 Cal.App.2d 902 [185 P.2d 396].) The burden of showing such an abuse of discretion is- on the appellant.

(Thompson

v.

Pioneer Laundry Co.,

54 Cal.App.2d 360 [128 P.2d 915].) The trial judge must himself weigh the evidence

(Green

v.

Soule,

145 Cal. 96 [78 P. 337]), and in resolving any conflicts he may draw inferences contrary to those made by the jury.