Tracey v. L. A. Paying Co.

WILLIS, J.,

pro tem.

Plaintiffs are a minor and his father. The minor sued defendants for damages for personal injuries, and in the same complaint the father joined, seeking recovery for expenses incurred by him in treatment and care of the injured son. The cause was tried before the court with a jury, and at the close of evidence defendants moved for directed verdicts against - each plaintiff. These motions were denied and thereafter verdicts were returned by the jury in favor of each plaintiff for certain amounts, whereupon defendants made motions for judgments in favor of defendants notwithstanding such verdicts, in the alternative form, reserving the right to apply for a new trial if such motions be denied. These motions were also denied and judgments on the verdicts were thereafter entered. In due course defendants moved for a new trial, and on the hearing of this motion the trial court ordered judgments to be entered in favor of defendants notwithstanding the verdicts. Prom these judgments the plaintiffs have appealed.

The motions for directed verdicts and for judgment notwithstanding the verdicts were made on the ground that the evidence failed to show any negligence on the part of defendants and that the evidence affirmatively showed negligence on the part of the injured minor which proximately contributed to the accident.

Section 629 of the Code of Civil Procedure creates two occasions on which a judgment may be ordered by the trial court notwithstanding the verdict. The first is when a motion for directed verdict has been made and denied and,

[703]

before judgment has been entered on a verdict, the court, either on its own motion or on motion of the aggrieved party, upon determining that the motion for directed verdict should have been granted, may render a judgment notwithstanding the verdict. The second occasion is when the motion for judgment notwithstanding the verdict has been made after denial of a motion for a directed verdict with the alternative reservation of the right to move for a new trial, and motion for a new trial has been duly made after entry of the judgment on the verdict, the trial court, on the hearing of the motion for new trial, “may order judgment to be so entered when it appears from the whole evidence that a verdict should have been so directed at the trial”.