Linn v. Roby

MUSSELL, J.

This action for damages arose out of an automobile collision which occurred on August 18, 1952, at about 11:30 a. m. on United States Highway 101 approximately 8 miles south of Laguna Beach. A jury trial resulted in a verdict in favor of plaintiff Charles Linn in the amount of $1,370.91 and in favor of his wife, Readell Linn, for the sum of $2,278.31, all against the defendant Benjamin C. Roby. Thereafter plaintiffs moved for a new trial on the issue of damages. This motion was granted on the ground of insufficiency of the evidence to support the verdict and judgment. Defendant Benjamin C. Roby appeals from the

[449]

order granting the limited new trial and the sole issue here is whether the trial court abused its discretion in so limiting the new trial to the issue of damages.

Evidence:

Plaintiff Charles Linn was driving his 1947 De Soto automobile south on Highway 101, which, at and near the point where the accident occurred, is a four-lane, north and south highway and the north and south traffic lanes are separated by a four-foot, marked island in the center. Salt Creek road runs in a northeasterly direction into the highway and there is a 48-foot gap in the island to permit northbound traffic on the highway to cross it and turn left to enter Salt Creek Road. Highway 101 has a downgrade of

2%

per cent from the top of a hill or rise approximately 700 feet north of the break in the island and there is a clear view of cars approaching from the north for at least 700 feet to one crossing the highway through the gap. Defendant Roby was driving his Dodge pickup truck north on Highway 101 and attempting to turn left into Salt Creek Road when the collision occurred.

Linn testified that he first saw the Roby truck approximately 1,000 feet away in the inner northbound lane of the highway; that he could not estimate its speed; that it did not stop and that when the two vehicles were very close, the Roby truck made a sudden lefthand turn without a signal, directly in front of him across the divided highway, approximately 40 to 50 feet south of the crossover at Salt Creek Road; that he, Linn, was traveling approximately 45 to 50 miles per hour and immediately applied his brakes “as hard as he could” and turned to the right; that the front part of his car struck the right side of the truck toward the front as the truck was coming toward him and turning to the left.