Breidenbach v. M. McCormick Co.

CHIPMAN, P. J.

This is an action for damages resulting from an injury suffered by plaintiff’s testate. The action was originally brought by deceased in her lifetime and, after her death and after the appeal was taken, the executrix of her last will was made plaintiff by substitution.

At the close of plaintiff’s evidence defendants moved for a nonsuit on the sole ground “that negligence on the part of the defendants has not been shown,” whereupon the court granted the motion and entered judgment in favor of defendants. Plaintiff moved for a new trial which was denied. The appeal is from the judgment and order denying plaintiff’s motion for a new trial.

[710]

The facts in this case are the same as in

Breidenbach

v.

McCormick Co.,

20 Cal. App. 184, [128 Pac. 423], decided by this court, October 22, 1912. The plaintiff, Nellie Breidenbach, in that ease and her mother, Mrs. Remfree, plaintiff’s testate in the present case, were riding together and were injured at the same time and by the same cause as in the former case. At the oral argument it was suggested by appellant that there is a distinction between the two judgments rendered, in this—“In the Remfree ease (the pending ease) we are entitled to urge as a reason for sustaining the action of the court in granting the nonsuit, the variance between the pleadings and the evidence. There is no evidence to support the allegation that the horse was left unattended1 in the street. The presumption would be in favor of the judgment of the lower court.” In the Breidenbach case, No. 976, the motion for nonsuit was on the ground “that no negligence whatsoever has been proven against the defendants.” The judgment was—“The motion for a nonsuit was argued and submitted . . . and after due deliberation thereon . . . the court . . . orders that said motion for nonsuit be granted and be entered herein in favor of the defendant in accordance therewith. ’ ’

In the present case the ground of the motion was as stated above substantially the same as in No. 976 and the only difference we can discover between the judgment in that ease and this ease is that, in No. 976, the ground of the motion was not stated in the judgment, except by reference to the motion, while in the present case the ground was stated in conformity with the motion but in different terms, viz.— “That the evidence introduced did not show facts sufficient to enable the court to render judgment in favor of said plaintiff.” The only question raised in both eases by the motion was as to the sufficiency of the evidence to show negligence on the part of defendants. We held, in the former ease, that the variance between the averments of the complaint in the particular there pointed out, and the proofs in the case, was not available to defendants because not made a ground in the motion for a new trial. For the reasons there given the same is true in the present case. But however this may be, there were averments in the complaint and evidence produced at the tria] showing that the horse of defendants, attached to a wagon, was without a driver, running away in the streets of