Row v. Biehl

TURRENTINE, J.,

pro

tem.

These actions arise out of a collision between a motorcycle driven by plaintiff J. W. Row and an automobile driven by defendant John Biehl. Just prior to the collision Biehl was driving east and J. W. Row was driving west on A Street, in San Diego. While Biehl was making a left turn on to Granada Avenue, proceeding north, Row ran into the right-hand side of the automobile, striking about the center of the rear door of the car. Action was brought by Row (a minor) for damages for injuries sustained by him in the accident and action was likewise brought by his parents, J. M. Row and Mattie Row, for expenses incurred. The causes were consolidated for trial and were tried before a jury and before a judge from another county, which returned verdicts in favor of plaintiffs and against the defendants.

Notices of intention to move for a new trial were filed on behalf of both defendants in both cases, which motions were made upon the grounds of insufficiency of the evidence to sustain the verdicts and errors 'of law, as well as other statutory grounds. These motions came on for hearing within thirty days after entry of judgments on the verdicts before a judge other than the one who presided at the trial, for the reason that the judge who presided at the trial was absent from the county where the trial was had. At that time the testimony taken at the trial had not been transcribed, but counsel for plaintiffs and defendants submitted the case on oral statements of the evidence produced at the trial, the exhibits which had been received in evidence and the arguments made. No objection was made by plaintiffs’ counsel to hearing the motions before

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a different judge, nor was any objection made to the manner in which they were heard. No request was made by the court or either party to the reporter to attend the hearing and to read his notes or any part thereof. Upon the submission of the motions for new trial the court made its order in each of said cases “that a new trial of the above-entitled action should be granted upon the ground and for the reason that the evidence introduced upon the trial of the above-entitled cause was insufficient to sustain the verdict .of the jury. It is therefore ordered and adjudged that said motion be and the same is hereby granted and a new trial of the above-entitled causes ordered.” From the orders granting the new trials the plaintiffs appeal.