Van Antwerp v. Smith

WARD, J.

An appeal by defendant in a personal injury action from an order granting plaintiff’s motion for a new trial. The order was granted upon the grounds of the insufficiency of the evidence to justify the verdict, and that the verdict is against the law. Appellant contends that the evidence as a matter of law establishes his freedom from negligence, and that contributory negligence of plaintiff was conclusively shown.

Appellant attacks certain instructions given the jury on the court’s own motion. It is admitted, however, that no prejudice resulted to his cause as a result thereof as the jury returned a verdict in his favor. He contends that the instructions, nevertheless, indicate the attitude of the trial judge in ruling upon the motion for a new trial. In passing upon the propriety of an order granting a new trial, the only test is whether or not there is any evidence that would legally substantiate and uphold a verdict for the moving party had the jury decided for him. Measured by this

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test, the only question to be decided in the instant ease is, has the trial court abused its discretionary powers.

The accident occurred at Soquel and Pacific Avenues in the city of Santa Cruz. Soquel Avenue, running approximately easterly and westerly, intersects and terminates at Pacific Avenue, which runs generally in a northerly and southerly direction. Traffic signals are operated at the intersection. Defendant, accompanied by his wife, was driving his automobile in a westerly direction on Soquel Avenue, approaching its intersection with Pacific Avenue. He testified that he stopped his car at the intersection to await the " Go ” signal, whereupon he made a left hand turn. At that time pedestrians were crossing from the west to the east side of Pacific Avenue in the southerly pedestrian lane, plaintiff being approximately five feet behind the other crossing pedestrians. When near the center of Pacific Avenue plaintiff was struck by the front right bumper of defendant’s car, knocked down and suffered certain injuries, the basis for the claim for damages. -

Defendant claims that immediately before the impact plaintiff gave him a signal to proceed. According to plaintiff’s testimony, she did not observe the ear and did not give such signal. She also contends that the defendant “cut” into the intersection. To substantiate this claim, the position of her body after the impact, and the location of the car, are called to our attention. With considerable force, defendant quotes testimony to disprove this contention. The jury could reasonably have adopted either theory.