Bridgford v. Sawyer

PEEK, J.

Plaintiffs in these two consolidated actions have appealed from the order granting defendant Merced Irrigation District’s motion for a new trial.

The complaints allege that while the plaintiffs, who were husband and wife, were traveling in an automobile driven by Glenn Bridgford, the automobile overturned as a result of crossing a flooded portion of the highway, causing severe injuries to them both. It was further alleged that the flooding of the highway was caused by a cut or opening in the district’s irrigation ditch bordering the highway. Named as defendants were the irrigation district, its directors and certain of its employees, and certain employees of the State Department of Pubic Works, Division of Highways. A nonsuit was granted as to the directors of the Irrigation District and as to three of the employees of the Division of Highways. Following the verdict, which was in favor of both plaintiffs against the irrigation district, the district moved for a new trial. In the order granting the motion the court expressly stated that the ground was that the evidence was insufficient to justify the verdict. The sole question on appeal is the validity of the order granting said motion.

From the evidence adduced at the trial it appears that the flooding of the highway, which caused the accident, was in turn caused by a cut in the irrigation ditch bordering the highway. The absence of vegetation on the inside of the cut indicated that it was a new one. In the past employees of the Division of Highways had cut openings in the bank of the ditch in order to drain water from the highway. After the accident the cut in question was filled by an employee of the irrigation district. The day prior to the accident the ditch had been patrolled by an employee of the irrigation district, and no breaks or cuts in the bank were discovered at that time.

Appellants’ principal contention is that the order granting a new trial does not specify insufficiency of the evidence to justify the verdicts within the meaning of section 657 of the Code of Civil Procedure, both because it was not the “usual

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unequivocal order” and because a reading of the order as a whole demonstrates that insufficiency of the evidence was not the true basis of the order.