Dorsa v. MacNeil

WOOD (Fred B.), J.

Plaintiff has appealed from an order granting a new trial, in an action for personal injuries sustained by plaintiff while riding as a passenger in an automobile, caused by a head-on collision with an automobile driven by the defendant, in the middle lane of a three-lane highway.

[809]

The new trial was granted on the ground of insufficiency of . the evidence to justify the verdict. “An order granting a new trial upon the ground of the insufficiency of the evidence to sustain the judgment will not be disturbed upon appeal, unless there be a clear showing of abuse of discretion. ‘All presumptions are in favor of the order and it will be affirmed if it is sustainable on any ground. [Citations.] The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party.’ [Citation.] Even if the evidence is uncontradicted, the trial judge may draw inferences from it contrary to those made by the jury, and it is his duty to resolve such conflicts in determining whether the issues should be retried. Only when, as a matter of law, there is no substantial evidence to support a contrary judgment, may an appellate court reverse an order granting a new trial. [Citations.] ”

(Williams

v.

Field Transportation Co.,

28 Cal.2d 696, 698 [171 P.2d 722].)

Plaintiff claims that it appears as a matter of law that (1) defendant was negligent, (2) such negligence proximately caused plaintiff’s injuries, and (3) plaintiff was not guilty of contributory negligence.

(1) As to negligence of the defendant, plaintiff claims the evidence demonstrates a violation of section 526 of the Vehicle Code upon the theory that defendant moved into the middle lane without ascertaining if such movement could be made with safety and at a time and place when the roadway was not clearly visible and the center lane not clear of traffic within a safe distance, a claim predicated principally upon evidence of lack of visibility (a dense fog in the nighttime) and that defendant was traveling at an excessive rate of speed, 55 miles an hour. The defect of this argument inheres in the fact that it ignores evidence favorable to the defendant.