Nicholas v. Leslie

SHINN, J.,

pro tem.

tem

.The defendants appeal from an order granting plaintiff’s motion for a new trial in an action for personal injuries in which the verdict of the jury was in favor of the defendants.

Insufficiency of the evidence to sustain the verdict was specified by the court as one of the grounds upon which the motion was granted.

Plaintiff was struck by an automobile of the defendants while she was crossing a street in the city of Santa Barbara. Appellants claim the order granting a new trial upon this ground was erroneous for the reason that no negligence of Victoria Leslie, the driver of the automobile, was shown and because it appears from the plaintiff’s testimony, as a matter of law, that she was guilty of contributory negligence. If either of these contentions should be upheld, the order should be reversed. If, upon the other hand, there is evidence from which conclusions may reasonably be drawn that defendant Victoria Leslie was guilty of negligence and

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plaintiff was not guilty of contributory negligence, the order should be affirmed. In such a case it will be presumed that the trial court, in granting the motion, was not satisfied with such of the testimony of the witnesses as tended to show that defendant was not negligent and plaintiff was guilty of contributory negligence. Examination of the record readily discloses testimony which amply supports the court’s order.

Plaintiff, a woman about seventy years of age, was crossing Santa Barbara Street at the intersection of Haley Street, from the southwest to the southeast corner of the intersection. Haley Street is forty-two feet wide between curbs. Santa Barbara is forty and one-half feet wide between curbs. The distance between curb and property lines on the south side of Haley Street is eight feet four inches and that would be the width of the pedestrian crosswalk across Santa Barbara Street. A painted line on the pavement crossing Santa Barbara marked the extension of the property lines of Haley Street. There were boulevard stop signs on Santa Barbara, requiring motorists to stop before crossing Haley Street. Plaintiff was walking easterly on the south sidewalk of Haley Street and when she came to Santa Barbara she there saw the automobile of defendants approaching from the north. Its exact location when she first saw it is not clearly indicated in her testimony. Appellants quote her statement that she first saw the car ‘ ‘ coming through ’ ’, as proving that the car had entered the intersection before she saw it, but from a reading of her entire testimony, we understand that she observed the car when it was Some distance north of the intersection. Plaintiff did not display a good command of the English language, which, we think, accounts for the somewhat confusing use of the expression quoted and which we think has been misinterpreted by appellants’ counsel.