Laverne v. Dold

PULLEN, P. J.

In this case the trial court set aside the verdict of the jury and granted the motion of plaintiff, respondent herein, for a new trial upon the ground of insufficiency of the evidence, and newly discovered evidence. Appellant urges such order constituted an abuse of discretion.

[182]

The accident with which this litigation is concerned occurred in the afternoon of May 18, 1933, in a business district and at an obstructed intersection of Third and M Streets in Sacramento. Defendant Rose, as the employee of defendant Bold, was driving a truck southerly on Third Street where it intersects M Street, and plaintiff, a guest, was riding in the front seat of a Stutz automobile being driven by Mrs. Nourse, easterly on M Street. There was a street car track on Third Street and double car tracks on M Street. Plaintiff testified she saw the truck before it entered the intersection, the Stutz then being about its length in the intersection. She also testified the truck was on the wrong side of the street and was traveling about 35 miles per hour and the Stutz traveling about 15 miles per hour. The Stutz, in an attempt to avoid a collision, was stopped when its front wheels were about two feet beyond the easterly track of the car tracks and was struck by the truck near the left front wheel.

Clyde W. Reid, a witness who was standing on the Third Street sidewalk testified the truck was going about 30 or 35 or maybe 40 miles an hour into the intersection, traveling along the ear tracks in the center of the street. He testified the Stutz entered the intersection first and stopped with its front wheels four or five feet east of the easterly rail of the Third Street line. The driver of the Stutz testified as to the position of plaintiff in the car, that plaintiff was her guest, and that when she was almost in the middle of. the street she saw the truck enter the intersection going about 35 miles an hour. She stopped, believing the truck would pass either to her rear or in the front. Other witnesses testified to the same effect, all tending to show the Stutz entered the intersection first, but that the truck failed to yield the right of way, the excessive speed of the truck, the fact that it was being driven on the wrong side of the street, and the failure to turn the truck to the right or the left to avoid the collision. Some of this testimony is contradicted by witnesses called for the defense, but in passing upon a motion for a new trial the trial court becomes the judge of both the weight and sufficiency of the evidence and of the credibility of the witnesses.