Mendoza v. Enrico

GRIFFIN, J.

This action was for damages for claimed personal injuries to plaintiff resulting in a jury verdict for defendants. It was tried by Judge Mitchell. The motion for new trial was heard by Judge Deirup and was granted on the ground of insufficiency of the evidence. No transcript of the testimony at the trial was furnished him. Apparently neither counsel for plaintiff nor for defendant knew of Judge Mitchell’s absence from the county until the motion came on for hearing. Counsel for defendants who tried the case died prior to the hearing of the motion.

At the hearing it was stipulated by respective counsel that the assigned judge was duly requested and authorized to act in said court; that he had all the powers given by section 5, article VI of the California Constitution; and that the trial judge was absent from the county and could not hear the motion.

Counsel for plaintiff then asked the court if he might briefly review the facts as presented to the trial court in the light most favorable to the defendants. A map was used in demonstrating what the several witnesses testified to in respect to the collision and resulting injuries. He stated that defendants ’ car struck a truck in which plaintiff was riding as a passenger. Plaintiff was seated on some boxes in the rear of the truck and defendants’ car ran into the back end of the truck while attempting to pass it when both were going in the same direction. Plaintiff was thrown out and sustained injuries.

Defendant Mrs. Enrico’s testimony was that at approximately 200 feet from the intersection she decided to pass the truck, started to turn out, and that the truck driver, without any signal, crossed over the center line and the accident happened. Counsel for plaintiff stated that at the trial Mrs. Enrico said she remembered nothing; that she made a very

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poor witness; and that her story was impossible because the accident could not have happened in the manner she indicated.

Counsel for plaintiff further stated that defendants’ car “laid down heavy skid marks for 144 feet”; that the driver thereof struck the truck and defendants’ car traveled about 30 feet more before it came to a stop; that the police cited her for speeding and passing a car within 100 feet of an intersection, and that she pleaded guilty to both charges.