Fitzgerald v. Fishburn

California Court of Appeal Aug 9, 1963 No. Civ. 20553Published

Before: Draper

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Holding. The appellate court affirmed the trial court's order granting a new trial based on newly discovered evidence, finding no abuse of discretion in the trial judge's determination that the evidence was discovered with due diligence and could lead to a different result.

Issues

Whether the trial court abused its discretion in granting a new trial based on newly discovered evidence of the defendant's partial blindness.
Whether the plaintiffs exercised due diligence in discovering the defendant's physical condition prior to the verdict.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The probability of a different result on the strongly conflicting evidence here is essentially a question for the trial judge.”

DRAPER, P. J.

Plaintiff minor and his father sought damages for injuries suffered by the son in the collision of his bicycle and defendant’s pickup truck. Verdict was for defendant. Plaintiffs’ motion for new trial was granted on the ground of newly discovered evidence (Code Civ. Proc., § 657, subd. 4). Defendant appeals.

The accident occurred between 6:45 and 7 p.m., October 15, 1959, at an unlighted intersection. There was sharply conflicting testimony as to the degree of visibility, some witnesses testifying that it was dark, and others that it was but dusk, with good visibility up to 100 yards. Sunset had occurred at 5:31 p.m. Defendant drove east on Geary Road and turned left into Putnam Drive, entering it with his truck wholly on the left side of the street. The minor, pedalling west on Geary Road, was in the crosswalk, about three-fourths of the way across Putnam, when the truck struck him. The lights of the pickup truck were on. The bicycle bore no light. Defendant did not see the boy until impact.

The affidavit supporting motion for new trial alleged that: defendant had no sight in his left eye; this fact was not known to plaintiffs or their counsel until defendant related it to plaintiff father “after the case had been submitted to the jury”; and it could not sooner have been discovered because defendant’s appearance was normal.

Newly discovered evidence warrants new trial only when a different result is probable upon retrial

(Meyer

Parobek,

119 Cal.App.2d 509, 514 [259 P.2d 948]). Defendant argues that plaintiffs cannot recover because the absence of a lamp on the bicycle violated the statute (Veh. Code, § 25652) and thus constituted contributory negligence. But even negligence per se does not bar recovery unless it is a proximate cause of the injury

(Farole

Eichman,

39 Cal.2d 822, 824 [249 P.2d 261]). Visibility at the time and place of the accident bears strongly upon the fact issue of proximate cause in a case of this type

(id.

at p. 825), even though the

[155]

Fitzgerald v. Fishburn

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DRAPER, P. J.

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