Phillips v. Barron

DOOLING, J.

Defendant appeals from an order granting a new trial on the ground of insufficiency of the evidence. The action was one for personal injuries received by plaintiff in a collision between the automobile driven by her and the automobile driven by defendant.

The rule is firmly settled by an unbroken line of decisions of our Supreme Court that the trial court is entitled to reweigh the evidence in determining whether to grant a new trial on the ground of insufficiency of the evidence and if the evidence is legally sufficient to support a verdict in favor of the party moving for the new trial an appellate court must affirm the order of the trial court granting the new trial on that ground.

(Hawk

v.

City of Newport Beach,

46 Cal.2d 213, 219 [293 P.2d 48];

Richardson

v.

Ham,

44 Cal.

[318]

2d 772, 775 [285 P.2d 269].) Appellant asks us to reconsider and set aside this rule. It is futile to ask an intermediate court to overrule a principle settled by the decisions of our Supreme Court, which we are bound in law to follow. In this connection we may point out that as recently as September 17, 1957, the Supreme Court again reaffirmed this particular rule in

People

v.

Sheran,

49 Cal.2d 101, 109 [315 P.2d 5].

Looking therefore only to the evidence most favorable to the plaintiff we find the following: The collision occurred on September 14,1954, on East 14th Street in San Leandro at its intersection with 152d Avenue. In this area East 14th Street is a four lane highway with two northbound and two southbound lanes separated by a dividing strip approximately 17 feet wide. The plaintiff was southbound on East 14th Street in the inner lane driving her ear at about 25 or 30 miles per hour. Defendant who had been driving northerly had turned left into the dividing strip at the intersection of 152d Avenue intending to make a U-turn. The plaintiff testified that when she was 30 or 40 feet from this intersection she saw the defendant’s automobile apparently stopped in the divider strip. The defendant then started his car forward into the southbound lane. When plaintiff observed this she put her foot on the brake and swerved her car to the right. The defendant’s car continued to move and the two came into a glancing collision. Plaintiff “blacked out” temporarily and partially lost control of her car which ran over the outer curb, entered a lot, struck an 18-foot boat on a boat trailer, and continued into the next lot where it collided violently with a house trailer. The witness Waiters corroborated plaintiff in the following particulars: He testified that he first saw defendant’s automobile stopped in the dividing strip; that it started forward into the southbound lane and continued moving until the collision when its front end had about reached the dividing line between the two southbound lanes; thát plaintiff swerved her car to the right but nevertheless the two cars came into contact. There was conflicting testimony in many particulars but under the rule above referred to we must disregard it.