Ferran v. Mulcrevy

KNIGHT, J.

While standing between the double tracks of the Southern Pacific Company at Lomita Park Station in San Mateo County, waiting to board a northbound train, the petitioner, Phillip Ferran, was struck on the elbow by the overhang of the locomotive of a southbound train, and on account of the injuries he sustained he brought an action for damages against said company and John E. Monroe, the locomotive fireman. At the trial a jury awarded Ferran a verdict, but under the authority of section 629 of the Code of Civil Procedure the defendants in the action moved for judgment in their favor notwithstanding the verdict, reserving the right to apply for a new trial in the event the motion was denied; and the trial court granted the motion. Judgment in favor of defendants was entered accordingly. Ferran appealed, and the District Court of Appeal affirmed the judgment as to Monroe, but reversed it as to the Southern Pacific Company, with directions to the trial court to enter judgment in favor of Ferran and against said company in accordance with the verdict. The defendants then petitioned for and were granted a hearing by the Supreme Court, and the judgment of the trial court was reversed as to both defendants

(Ferran

v.

Southern Pac. Co.,

3 Cal. (2d) 350 [44 Pac. (2d) 533]), but the Supreme Court decision embodied no directions to the trial court as to the nature of the proceedings that should be thereafter taken in the case, the language used being simply: “The judgment is reversed. ’ ’ Ferran did not apply for a rehearing; but the deeming themselves aggrieved by the decision, did petition for such rehearing and their petition was denied. Following the filing of the

remittitur

in the trial court, Ferran requested the judge and the clerk thereof to enter judgment in his favor, in conformity with the verdict of the jury, but

[131]

Ms request was denied; and he now seeks by this proceeding in

mandamus

to compel the entry of such judgment.