Kinney v. King

RICHARDS, J.

This is an appeal from an order granting a new trial in an action for damages resulting from an

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automobile collision. The plaintiffs upon the trial of the action before a jury were awarded a verdict in the sum of five thousand dollars damages. The defendant moved for a new trial upon several statutory grounds. The court granted said motion by an order which read as follows: “Defendant’s motion for a new trial is granted solely upon the ground that, conceding the evidence given by the plaintiffs to be true, plaintiffs were not as a matter of law entitled to recover.”

The plaintiffs have appealed from this order, and upon such appeal urge the single point that the trial court was in error in holding that the plaintiffs were guilty of contributory negligence, which, as a matter of law, would bar their recovery in this action. The respondent maintains" that the trial court was right in so holding, and also undertakes to contend that there were certain other errors occurring at the trial which entitled him to a new trial, and devotes much space to a discussion of these alleged errors. We are of the opinion, however, that these matters are not proper subject of discussion upon this appeal in view of the limited form of the court’s order in granting the motion for a new trial. We shall, therefore, confine ourselves to the single point urged by the appellants as a ground of reversal upon this appeal.

[1]

The facts of the case, as testified to by the plaintiffs, were these: On the ninth day of January, 1916, the plaintiffs were proceeding in their Ford roadster automobile easterly on West 9th Street, in the city of Los Angeles, approaching the intersection of said street with Lake Street. West 9th Street is fifty feet wide between the curbs. Lake Street is forty-four feet wide between the curbs. At the same time the defendant was proceeding in a Cadillac car northerly on Lake Street approaching its intersection with West 9th Street. There was a retaining wall on the southwest corner of these two streets which would obstruct the view of persons driving easterly on West 9th Street or northerly on Lake Street until each was within a few feet of the respective lines of intersection. The plaintiffs were familiar with the conditions at that particular intersection .since they lived but a few blocks westerly and passed there frequently. The plaintiff, F. B. Kinney, was driving his car, and as he came to the point of intersection was travel