Wulbern v. Gilroy Express

WARD, J.,

pro tem.

This is an action for personal injuries. The defendant in his answer pleaded contributory negligence. A jury rendered a verdict in the sum of $2,000 in favor of the plaintiff. The trial court granted a motion for a new trial on the ground of the insufficiency of evidence to sustain the verdict. • Plaintiff appealed from the order granting the motion for a new trial.

At about 11 o’clock P. M. on the night of the accident a truck, with trailer attached, owned and operated by defend

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ants, was proceeding in a southerly direction along the state highway near Belmont in San Mateo County. The highway at this point is an oiled macadam roadway of approximately twenty-five feet in width, with a two and a half foot shoulder on each side. Mechanical difficulty appearing, the driver parked the truck on the right side of the roadway. The tail-light on the trailer was burning. Plaintiff, operating a Ford coupe traveling at a speed of thirty-two miles an hour and in the same direction as the truck, saw the truck and trailer at least forty-five feet away. A traffic officer, experienced in operating Fords, who was well acquainted with the road and its condition on the night of the accident, testified that plaintiff’s car at thirty-two miles an hour could be stopped in fifteen feet. The evidence is conflicting upon many essential facts: the exact spot the truck was parked; whether the driver was justified at all in parking under all the circumstances of what the defendants claimed inefficient mechanical condition of the truck; the number of lights on the truck; whether the Ford’s right front head-light was out prior to the accident, etc.

Assuming, but not deciding, that the defendant was negligent, there was ample evidence upon which the jury might have determined that the plaintiff was guilty of contributory negligence. The evidence was conflicting to such an extent that the jury could have returned a verdict for the defendant. If the court was convinced that the evidence was not sufficient to warrant a verdict for the plaintiff or that the plaintiff was guilty of negligence which caused or contributed proximately to the accident, then the court properly granted the motion for a new trial. On a motion for a new trial the court “has power to draw inferences from the evidence opposed to those which were drawn by it upon the trial, provided they are not unreasonable”.