Celli v. French

BARNARD, P. J.

This is an appeal from an order granting a new trial upon the sole ground of newly discovered evidence.

On August 7, 1948, the minor plaintiff was struck and injured by defendant’s automobile which was traveling north on Victoria Drive in Laguna Beach. The boy, then 4 years old, was attempting to cross from the west side of the street to his home on the east side.

The main question at the trial was as to whether or not the defendant had been traveling on the west or wrong side of the street. The defendant moved his car after the accident but the time at which this was done, in relation to another event, was of great importance. A witness for the plaintiff testified that immediately after she heard the screech of brakes she saw the defendant’s car parked near the west side of the road facing north, with its left wheels about 4 feet from the left side of the road. The defendant testified that he was driving on the right side of the road at the time of the accident; that he did not move his car after hitting the boy until after the ambulance left the second time, to take the boy to the hospital; and

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that when the ambulance left to go to the hospital it went north around and to the left of his car. The testimony for both parties showed that when the ambulance first arrived it came south and parked on the west side, opposite the boy’s

home;

that since the doctor had not yet arrived the ambulance left and proceeded south; that the ambulance later returned, going north, and parked on the right or east side of this street; and that after the boy was placed in it it was driven away in a northerly direction.

The presentation of evidence closed on February 9, 1950, and on motion of the defendant the giving of instructions and the arguments to the jury were postponed to February 14, 1950. On that day, counsel for the plaintiff asked permission to reopen his ease for the purpose of putting on some evidence, which is the newly discovered evidence here in question. An offer of proof was also made. It was stated that a new witness had just been discovered who was employed by the Los Angeles school department, but who at times occupied a house adjoining the scene of this accident, and that she would testify that she was there at the time of the accident; that she heard the commotion and went out on the street; that she saw the defendant’s car, immediately after the accident, clear over on the west side of the street and headed north; that she saw the defendant move his car from that location, moving it to the right-hand side of the street, going north; that this moving of the car occurred before the ambulance came the first time; and that she saw the ambulance come the first time, driving south on Victoria Drive. The court remarked that this offered evidence contained a new element in that there had been no evidence of the moving of the car by any eyewitness to the moving, and no evidence to the effect that the car had been moved prior to the time the ambulance first arrived. The court suggested that this was an element of newly discovered evidence which could well be considered on a motion for a new trial, if one were made, but denied the motion to reopen for the reason that to do so would be unfair to the defendant who had been allowed to return to his school in Oregon. The case proceeded, and the jury voted 10 to 2 in favor of the defendant. A motion for a new trial was made on all the statutory grounds and was granted “upon the sole ground materially affecting the substantial rights of plaintiff, viz., newly discovered evidence, material for the said party making the said application, which he could not, with reasonable diligence, have discovered and produced at the trial.”