Ennulat v. Taylor

CONREY, P. J.

The plaintiff brought this action to recover damages resulting from alleged negligence of the defendant in driving an automobile, so that said automobile collided with another automobile in which the plaintiff was riding and which was driven by one Phillippo. The denials contained in defendant’s answer raised substantial issues of fact, including a denial of any negligence by the defendant.

[422]

Defendant further pleaded an affirmative defense charging negligence of the driver Phillippo, which directly, proximately and concurrently contributed to plaintiff’s alleged injuries. It was further alleged in the answer that the plaintiff and Phillippo were jointly engaged in operating and controlling the automobile in which the plaintiff was riding. In accordance with the verdict of a jury, judgment was entered in favor of the plaintiff in the sum of $5,000. Thereafter, on motion of the defendant, the court entered its order granting a new trial, from which order the plaintiff now appeals.

In its order granting the motion for a new trial the court did not state that the order was made upon the ground of insufficiency of the evidence to sustain the verdict. When the court does not so specify, “on appeal from such order it will be presumed that the order was not based upon that ground”. (Code Civ. Proc., sec. 657.) Respondent contends, however, that this rule does not apply in a case where the evidence is insufficient in law to sustain the verdict. Assuming, without deciding, that this exception to the rule should be recognized on appeal from such an order, we have reached the conclusion that the evidence is, as a matter of law, sufficient to sustain the verdict. There is evidence tending to establish negligence on the part of the defendant, and there is evidence from which the jury was authorized to find that the plaintiff was not guilty of any negligence and further to find that the plaintiff and Phillippo were not jointly engaged in operating and controlling Phillippo’s automobile.

Referring to that part of the motion for a new trial which rested upon the ground that there were errors of law occurring at the trial and excepted to by the defendant, appellant in his brief has directed attention, by their numbers, to certain instructions given to the jury, which he says were the only instructions which, in presenting the motion, respondent claimed were erroneous. As to these, appellant said that they would be “discussed later”, but he did not give them any further attention in that brief. If respondent had left the matter there, we would not have been called upon to examine the instructions. But respondent in his brief has specified the instructions which he claims were erroneous, and has sought to justify that contention. We