McNeely v. Hill

CONREY, P. J.

The defendant was employed by one Connell, the owner of a lot in the city of Los Angeles, to, make an excavation therein preliminary to the erection of a building. The lot was located at the north end of Santee Street. For a long time prior to the time when the exea

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vation was made there had been a roadway across this lot by which the public had commonly and usually traveled between Santee Street and other lands leading to Los Angeles Street. Of this the plaintiff and the defendant had full knowledge. The defendant at the time stated maintained said excavation and an incline running into the north end thereof, without any barriers, lights, or other warning to prevent persons from falling into said incline or excavation. On the night of April 15, 1917, the plaintiff, while traveling to his place of employment, and while attempting to pass from the north end of Santee Street across said lot, fell into the excavation and was injured thereby. He brought this action to recover damages for said injuries alleged to have been suffered by defendant’s negligence. The defendant, in addition to denying any negligence on his own part, pleaded the affirmative defense of contributory negligence on the part of the plaintiff. A verdict and judgment having been entered in favor of the plaintiff, the defendant moved for a new trial, which motion, according to the minutes of the court, was granted “on the ground alone of plaintiff’s contributory negligence.” The plaintiff appeals from that order.

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The notice of intention to move for a new trial stated that the motion would be made upon certain stated grounds “and upon the records, papers and files in said action.” Appellant contends that the notice was insufficient to authorize the court to hear the motion, because it did not comply with the requirements of section 659 of the Code of Civil Procedure, which provides that the notice shall designate the grounds upon which the motion shall be made “ and whether the same will be made upon affidavits or the minutes of the court or both.” We think that the statement, although formally defective, did in substance comply with the rule. This is so because the minutes of the court are a part of the records of the court. Therefore, a motion made upon the' records is a motion made upon the minutes of the court.