Carvalho v. Lusardi

WAGLER, J. pro tem.

This is an appeal by defendant from an order granting plaintiff’s motion for a new trial. In her complaint the plaintiff, a pedestrian, alleged that she was injured when the defendant so negligently operated his automobile as to cause it to collide with her at an intersection in the city of San Jose. The defendant denied negligence and set up the affirmative defense of contributory negligence. Judgment for defendant was entered upon a jury’s verdict. Thereafter the plaintiff moved for a new trial upon all of the statutory grounds except that of excessive damages.

The minute order granting the new trial reads as follows: “The above entitled matter having been regularly heard and submitted, the Court makes its order that plaintiff’s motion for new trial is granted.”

Since this is the only order contained in the record and since it specifies no grounds for granting the motion, we are precluded from considering the insufficiency of the evidence to support the judgment unless the evidence was without conflict and insufficient as a matter of law. (Code Civ. Proc., § 657;

Pitt

v.

Southern Pac. Co.,

121 Cal.App. 228 [9 P.2d 273];

Springer

v.

Sodestrom,

54 Cal.App.2d 704 [129 P.2d 499];

Adams

v.

American President Lines,

23 Cal.2d 681 [146 P.2d 1].)

The evidence was conflicting on the issues of negligence and contributory negligence and the plaintiff before this court has abandoned all grounds except: (1) Newly discovered evidence and (2) Errors in law.

Two affidavits were filed by plaintiff in support of her motion. They are contained in the transcript certified by

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the court but there is nothing in the record to indicate that they were ever offered in evidence or considered by the trial judge. "While defendant tacitly admits that the affidavits were referred to during the argument on the motion and in part at least read by the trial judge, he contends that since they were not formally offered and received in evidence the order granting the new trial cannot be based on the contents thereof. Appellant relies upon the following cases: