Northrup v. Cohn

FINCH, P. J.

-Plaintiff Jennie Northrup was struck and severely injured by an automobile driven by defendant M. M. Cohn, and this is an action for damages on account thereof. The parties named will be referred to herein as the plaintiff and the defendant, respectively. The jury a verdict in favor of the plaintiff and judgment was entered thereon in her favor. In due time the defendant

[142]

gave notice of intention to move for a new trial on many specified grounds, including that of “insufficiency of the evidence to justify the verdict.” The court granted the motion “upon all the grounds stated in the notice of intention to move for a new trial.” This appeal is from the order granting the motion.

Where there is a substantial conflict in the evidence, the determination of the trial court that the verdict is against the weight of the evidence is conclusive on appeal.

(Rosenberg

v.

Moore,

194 Cal. 392, 396 [229 Pac. 34].) In this case the evidence is in substantial conflict and, therefore, no ground for a new trial need be considered except that of the insufficiency of the evidence.

At the time of the accident the defendant was traveling north along the east side of Moneta Avenue in Los Angeles. While the plaintiff was crossing from the west side to the east side of the avenue she was struck by the right front fender of defendant’s automobile, and her alleged injuries were caused by the impact. She testified that she “was crossing right at the intersection” of Forty-fifth Street and Moneta Avenue, but other witnesses testified that she was crossing forty or fifty feet north of the intersection. She testified that she knew that Moneta Avenue “was a very heavily traveled street”; that as she crossed the avenue she looked to the north until she reached the ear tracks, there being double street-car lines along that avenue; that she then looked south; that when she had reached the center of the avenue she saw defendant’s automobile “halfway up the next block” to the south; that when she had crossed the north-bound car line she “started to run” and ran as fast as she could for about fourteen feet to the point where she was struck; that as she ran she continuously looked at defendant’s automobile; that the automobile did not swerve from its course but “came right straight.” She further testified as follows: “Q. When you were in the middle of the east side of the street and saw it coming at the south side why didn’t you stop? A. Because he didn’t stop. . . . Q. I know, but I am asking you when he didn’t stop why didn’t you? A. I thought if I ran hard enough I would escape. The Court: Were you trying to beat him to it? A. I was. . . . Mr. Nuzum: Did you try to cross all the