Bogan v. White

HELD, J.,

pro

tern.

In this action, plaintiff claims damages of defendants for personal injuries suffered by her as a result of a collision between the automobile of defendant J. E. White and that of defendant H. Bahr. A jury returned its verdict against plaintiff, and in favor of both defendants, and judgment on the verdict was entered accordingly. Plaintiff moved for a new trial on all the statutory grounds except, of course, excessive damages, and on May 19, 1933, an order was entered “granting the motion of plaintiff for a new trial upon the grounds among others of the insufficiency of the evidence to support the verdict and judgment”. From this order the defendant J. E. White alone has appealed.

The granting or denial of a new trial is a matter resting so largely in the discretion of the trial court that it will not be disturbed except upon a manifest and unmistakable abuse. (2 Cal. Jur., p. 905.)

In

Dow

v.

Southern Pac. Co.,

118 Cal. App. 196 [4 Pac. (2d) 786], this court said:

“It is well settled that where there is a substantial conflict in the evidence, an order granting a new trial upon the ground of the insufficiency of the evidence to support the verdict will not be disturbed on appeal, in the absence of a clear and affirmative showing of a gross, manifest or unmistakable abuse of discretion. The authorities supporting this rule are legion.”

The record shows that the accident out of which this action arises occurred at about 8 o’clock on the evening of November 26, 1932, at the intersection of California and Channel Streets in the city of Stockton. Defendant White at the time was driving a Pontiac automobile in a southerly direction on California Street, and defendant Bahr was driving a Ford automobile in a westerly direction on Channel Street. The plaintiff, at the same time, was on foot and was crossing Channel Street from its northerly to its southerly side, on the west line of California Street. The Ford automobile struck the Pontiac, and the latter struck plaintiff, causing the injuries complained of.

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