Clippinger v. Reiss

JENNINGS, J.

Plaintiff brought this action to recover damages for personal injuries sustained by him as a result of

[605]

a collision between himself, a pedestrian, and an automobile which was being operated by defendant. Trial of the action before a jury resulted in the return of a verdict in plaintiff’s favor in the amount of $7,500. Judgment was entered in conformity with the verdict. Defendant then moved for a new trial. The motion was granted on the sole ground that the evidence was insufficient to justify the verdict. Plaintiff appeals from the order granting a new trial.

Appellant contends that application of the doctrine of last clear chance to the facts developed by the evidence demonstrates that the evidence is ample to support the verdict in his favor and would not warrant a contrary verdict and that therefore the order from which the appeal is presented must be reversed.

In making this contention appellant properly concedes the existence of the well-settled rule which precludes a reviewing court from disturbing an order granting a new trial on the ground of insufficiency of the evidence to justify a verdict in the absence of a clear showing that the trial court abused the very wide discretion reposed in such a tribunal with respect to granting or refusing motions for new trial. It is, however, urged that the evidence taken as a whole would not support a verdict contrary to that which was returned and that therefore an abuse of discretion is presented which requires reversal of the order. Intelligent consideration of this contention renders necessary some reference to the evidence which was produced during the trial.

The accident in which appellant received the injuries for which he sought to be compensated occurred in an intersection of Fourth Avenue with Broadway in the city of San Diego. The former street extends north and south and the latter in an east-west direction. This particular intersection is equipped with electric traffic signals consisting of semaphores, electric lights, and electric bells. A change in the direction of traffic is indicated in the following manner: There is first the sound of a single-stroke bell. Within a fraction of a second there is a second sound of the bell and simultaneously the semaphore indicating change in direction of traffic comes up and a green light replaces the red light which had theretofore been displayed. The traffic ordinance of the city of San Diego prohibits vehicular traffic from entering the intersection until the green light