Kehlor v. Satterlee

TUTTLE, J.

This action was brought to recover damages for personal injuries sustained by plaintiff when the mo

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toreycle he was riding collided with another motorcycle operated by a fellow member of the California highway patrol. Defendant was the driver of an automobile, and it was contended that the injuries suffered by plaintiff were due to the negligence of such driver. The jury brought in a verdict in favor of defendant, and the trial court granted plaintiff’s motion for new trial, upon the sole ground of the insufficiency of the evidence to support the verdict. This appeal is from the order granting the motion.

The accident happened about one mile north of Hood on the River Road in Sacramento County. This road, at the scene of the collision, is a curve some 800 feet in length. It is a 16-foot concrete road upon the top of the levee, with no obstruction whatever as to view, and daylight prevailed. Respondent and his fellow officer, Cockerton, were both on motorcycles, proceeding south at about 40 miles per hour. Respondent was in the rear, about 50 feet behind. Two cars approached from the other direction, going north, at a speed of 45 miles per hour. When respondent was about 100 feet away from the first automobile, the second automobile, driven by appellant, started to pull out into the left lane, in an attempt to pass the car ahead. Evidently seeing the motorcycle, and realizing that he could not safely pass, appellant dropped back into the right lane, immediately in the rear of the first car. In the meantime, the first motorcycle passed safely by. The second motorcycle, ridden by respondent, overtook and ran into the rear of the first motorcycle, inflicting the injuries for which compensation is sought. It was contended by respondent at the trial that the negligence of defendant in attempting to pass another car on a curve was the proximate cause of the collision between the two motorcycles. Appellant here contends that plaintiff was guilty of contributory negligence, and that this appears in the record as a matter of law.

The general rule governing appellate courts in reviewing the action of a trial court granting a motion for new trial is too well known to require the citation of authorities. Such an order, when it is predicated upon the insufficiency of the evidence, will not be disturbed upon appeal, except upon a showing of clear and manifest abuse of discretion on the part of the trial court in respect to the granting of the same. This rule is subject, however, to the