McCain v. City of Oakland

NOURSE, J.

Plaintiff commenced this action against the city of Oakland, the members of the city council, designated as commissioners, and the Fidelity and Deposit Company of Maryland, surety upon the official bonds of the commissioners. The cause of action was based upon personal injuries received by plaintiff while riding in an automobile

[641]

along one of the public streets of the city. The injury was occasioned by the collision on the night of September 19, 1917, of the automobile with a bulkhead alleged to have been constructed and maintained by the city authorities in a defective and dangerous condition. Upon demurrer the action fell as to the city of Oakland. At the conclusion of plaintiff’s main case all the remaining defendants moved for nonsuits. These motions were denied at the time except as to the defendant Morse, whose motion was granted. At the end of defendants’ case the court, of its own motion, reversed this ruling and ordered nonsuits as to all these defendants other than Soderberg and the surety company, as to whom the motions were denied. Though it does not so appear in the order, it is stated that the reason for making the distinction between commissioner Soderberg and the other commissioners was that he was the commissioner having special jurisdiction over the construction of street improvements. The cause then went to the jury as to these two defendants and a verdict resulted in favor of plaintiff in the sum of $5,149. Thereafter the court granted the motion of these defendants for a new trial.

The case comes before this court on two appeals presented, by stipulation, on one single record—(1) plaintiff’s appeal from the order granting a new trial, and (2) the appeal of defendants Soderberg and the surety company from the judgment. The latter appeal is not seriously urged, counsel stating in their briefs that an affirmance of the order granting a new trial disposes of their appeal.

[1]

The motion for a new trial was made upon eight separate grounds. It was granted on November 8, 1918, prior to the amendment to section 657 of the Code of Civil Procedure. It did not designate the ground upon which it was granted. Hence, if the order can be sustained upon any one of the grounds assigned it must be affirmed.