Springer v. Asbury Transportation Co.

FOURT, J.

This is an appeal from an order granting a motion of the defendant for a new trial.

The plaintiff brought the action for damages for personal injuries suffered as a result of a collision of two vehicles. The action was filed March 7, 1960. The evidence at the trial indicated, among other things, that on or about May 27, 1959, at about 3:45 p. m. the plaintiff was operating his 1958 Stude

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baker automobile eastbound upon a paved open highway 28 feet wide, at about 50 miles per hour, when it collided with the rear end of defendant’s tanker truck and trailer tank, which was parked (in the eastbound lane) on the paved portion of the highway while the driver thereof talked with a fellow employee who was operating a company truck parked and facing in the opposite direction. A car was approaching from the opposite direction upon the paved portion of the highway and plaintiff was therefore unable to pass the parked truck in the eastbound lane. The collision occurred with the front end of plaintiff’s car striking the rear end of defendant’s parked truck.

A unanimous verdict for the plaintiff in the sum of $6,500 was returned by the jury on April 13, 1961. Judgment on the verdict was entered on April 14, 1961. Within due time, namely on April 18,1961, defendant filed a notice of intention to move for a new trial on all statutory grounds.

Notice of entry of judgment, dated April 17, 1961, was filed April 18, 1961. There is nothing before this court or otherwise which would indicate that a copy of such notice of entry of judgment was ever served upon the defendant.

On May 12, 1961, after the argument on the motion for a new trial (which insofar as the defendant was concerned was upon the sole ground of insufficiency of the evidence), the court made a minute entry as follows:

“In the matter of the motions of defendant for new trial and for judgment notwithstanding the verdict, the Court now orders the motion for new trial granted, and the motion for judgment notwithstanding the verdict denied.”

It is to be noted that such order did not specify in writing that the motion was granted upon the ground of insufficiency of the evidence to sustain the verdict and therefore, “on appeal from such order it will be conclusively presumed that the order was not based on that ground.” (Code Civ. Proc. § 657.)