Amore v. Di Resta

SPENCE, J.

This is an appeal by defendant from an order of the trial court granting plaintiffs a new trial “upon the issue of damages alone upon the ground of irregularity in the proceedings of defendant Di Resta by which plaintiffs were prevented from having a fair trial, and also upon the ground of insufficiency of the evidence to justify the verdict in respect of its amount”.

The action was brought to recover damages for the wrongful death of one Joe Amore, who was the husband of plaintiff Josephine Amore, and the father of the two minor plaintiffs, Angelo Amore and Antonio Amore. The Market Street Railway Company had become liable for the death benefit provided by the Workmen’s Compensation, Insurance and Safety Act and joined as a party plaintiff. The jury

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returned a verdict in favor of plaintiffs in the sum of $1,000 and the trial court thereafter granted a new trial upon the grounds above mentioned.

Appellant contends that the trial court erred in granting the motion for new trial upon any ground as “the record does not disclose a case of liability against defendant”. Appellant apparently takes the position that the evidence was insufficient as a matter of law to support a verdict in favor of respondents. This contention is entirely without merit. It is unnecessary to do more than briefly outline the testimony given by the numerous witnesses called on behalf of respondents. On March 26, 1929, Joe Amore was employed by the railway company as a member of one of its overhead line crews. He was a “groundman” charged with the duty of remaining on the ground to pass up materials to those working aloft and to divert traffic away from the large tower truck which was used by the crew in working on the overhead lines. The truck was painted a very bright red and had a large sign on the rear— “Danger. Keep Back 50 Feet”. On the above date at about 2:45 P. M., the truck was standing on the westerly street-car track on Mission Street just north of Sickles Avenue. It was headed south in the direction of Daly City. Three members of the crew were working aloft while Amore was on the street 15 or 20 feet directly behind the truck facing away from the truck or in a general northerly direction. It was a clear, sunny day. Appellant was driving his automobile in a southerly direction along the westerly track at a speed of 30 to 40 miles per hour, although the speed was slightly decreased upon approaching the truck. Amore waved with his left hand for appellant to turn so as to pass the truck on the west side, but appellant continued on, striking Amore, carrying him some 15 or 20 feet and crushing him to death against the rear end of the tower truck. Amore had attempted to step aside when appellant’s automobile was a short distance from him, but failed to get clear of appellant’s car. Appellant testified that he did not see Amore or the tower truck until he had struck Amore. He attempted to explain the accident by stating that there was a truck traveling in front of his automobile which obstructed his view of the highway. He testified that this truck turned to the right to avoid a safety zone and this