Dickison v. LaThorpe

MUSSELL, J.

This is an action for damages for personal injuries sustained in an automobile collision. Defendant answered and filed a cross-complaint for damages to his auto

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mobile. A jury trial resulted in a verdict against the plaintiffs on their complaint and against the defendant on his cross-complaint. Judgment was entered in accordance with the verdict of the jury and plaintiffs thereafter moved for a new trial for the following causes:

(1) Irregularity in the proceedings of the court and jury and abuse of discretion by the court by which these plaintiffs and cross-defendants were prevented from having a fair trial.

(2) Misconduct of the jury.

(3) Accident and surprise which ordinary prudence could not have guarded against.

(4) Newly discovered evidence material to these plaintiffs and cross-defendants which they could not, with reasonable diligence, have discovered and produced at the trial.

(5) Insufficiency of the evidence to justify the verdict.

(6) Errors in law occurring at the trial and excepted to by these plaintiffs and cross-defendants.

The trial court granted the motion on the grounds set forth therein and including the insufficiency of the evidence to justify the verdict. Defendant appeals from the order granting the new trial asserting that the evidence demonstrates that plaintiff Sybil Dicldson was guilty of negligence as a matter of law and that since there was no substantial evidence to support a verdict for plaintiffs, the order granting a new trial must be reversed.

The accident occurred at approximately 7:45 a.m., November 28,1949, on Highway 99 near Kingsburg in Fresno County. Heavy fog limited visibility to a distance of from 50 to 75 feet. Plaintiff Sybil Dicldson drove a Chevrolet automobile, with lights on and windshield wiper working, in an easterly direction along an east-west private roadway to its intersection with Highway 99, which, at that point, runs north and south. She stopped at the entrance to the highway, then having ascertained that it was safe to cross the southbound lanes, proceeded easterly to the traffic island which separated the north and south traffic lanes. The distance between the north and south traffic lanes on the highway at this point was approximately 37% feet. Plaintiff again stopped before proceeding across the northbound traffic lanes, rolled down the right window of her ear, and while looking to the right for northbound traffic, proceeded across the highway at a speed of approximately 5 to 10 miles per hour. When the front bumper of her car was near the center white line dividing the northbound traffic lanes, she turned to look straight ahead and was struck