Carswell v. Pacific Greyhound Lines, Inc.

California Court of Appeal Jun 8, 1935 No. Civ. 5213Published

Before: Rankin

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Holding. The court held that the evidence presented a triable conflict regarding whether the appellants' trailer had a functioning red tail light, and that the claim of excessive damages could not be raised on appeal because it was not first presented in a motion for a new trial.

Issues

Whether there was sufficient evidence of negligence regarding the trailer's lighting to support the jury's verdict.
Whether the issue of excessive damages can be raised for the first time on appeal without a prior motion for a new trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is clear, therefore, that there is a conflict in the evidence as to whether at the time of the accident there was any red light burning upon the trailer.”

“It is well settled that a litigant desiring to avail himself of the right to appeal upon the ground of excessive damages must first make such ground a motion for a new trial in order that the trial court may review the matter.”

[467]

RANKIN, J.,

pro tem.

Appeal by defendant Blankenship Motors, Inc., William A. Hart and David Mattos from a judgment against all of the defendants awarding damages in the sum of $5,575.15' for injuries resulting to plaintiff from a motor vehicle collision, and from an order denying a new trial.

By their answer the defendants, Pacific Greyhound Lines, Inc., and G. 0. Christensen, admit their negligence and allege negligence on the part of appellants.

Appellants make the point on this appeal that the judgment lacks evidentiary support for the reason that the record does not establish that any negligence of appellants proximately caused or concurred in the accident, and that no evidence of negligence on the part of appellants having been shown, the jury was misdirected in the instructions of the court.

Plaintiff was a passenger in an automobile stage of the Pacific Greyhound Lines, Inc., owned by said corporation and driven by defendant G. 0. Christensen. Near Atwater, in the county of Merced, the automobile stage crashed into a trailer attached to a truck owned by appellant Blankenship Motors, Inc., and in charge of two drivers, the appellants William A. Hart and David Mattos. Both the automobile truck and the stage were traveling south on the highway. The truck and trailer stalled while the appellant Hart was driving the same and appellant Mattos was asleep on the truck, in a place provided for that purpose. The driver started to pull off the highway and succeeded in getting al] of the equipment off of the highway except the left rear wheel of the trailer, which remained upon the highway. The time was about 4 o ’clock A. M. on the 14th of September, and it seems to be conceded that it was dark at that time. While the trailer was thus on the highway, the automobile stage approached the same, at a speed of approximately forty-five miles per hour. The driver of the stage testified that he was momentarily blinded by the headlights of a passing automobile and that he did not see anything on the highway until he crashed into appellants’ trailer. Appellants base their assignment on this appeal on the assumption that the record shows without dispute that a red tail light and two blue side . lights were burning on the rear of the trailer at the time of

Carswell v. Pacific Greyhound Lines, Inc.

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RANKIN, J.,

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