Hanlon Drydock & Shipbuilding Co. v. Southern Pacific Co.

NOURSE, J.

Plaintiffs sued for damages alleged to have been caused by defendant’s negligence in permitting one of its freight trains to remain standing an unreasonable length of time across the public streets leading into the plant of the Hanlon Drydock and Shipbuilding Company located on the waterfront in East Oakland. The damage to plaintiffs is alleged to have resulted from a fire which broke out in this plant and which could not be reached by the fire department because the only means of ingress were obstructed by defendant’s train. The cause was tried before a jury, which returned a verdict for the defendant. The trial judge granted plaintiff’s motion for a new trial upon the grounds of insufficiency of the evidence and that the verdict was against law. Defendant has appealed from this order upon a typewritten transcript. As the Hanlon Drydock and Shipbuilding Company is the real party in interest, we will hereafter refer to it as the plaintiff and respondent.

In appeals of this nature, where a new trial has been granted on the ground of insufficiency of the evidence, the action of the trial judge “is conclusive upon the appellate court, unless there has been an abuse of discretion”

(Daniels

v.

McGuire,

52 Cal. App. 188, 189 [198 Pac. 421]), because the trial judge “must weigh and consider the evidence of both parties and determine for itself the just conclusion to be drawn from it; and it is the duty of such court to grant a new trial if not legally satisfied with the decision” (20 Cal. Jur., p. 111). When, therefore, an appeal is taken from an order granting a new trial on this ground it is incumbent upon the appellant to show that the trial judge

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abused the discretion lodged with him and this can rarely be done except by showing that there is no evidence which would have supported a verdict for the respondent.

Assuming this burden the appellant contends that there is no evidence of negligence on its part, that the alleged acts of negligence were not the proximate cause of any of respondent’s loss, that the respondent was guilty of contributory negligence as a matter of law, and that its damage was purely speculative. At the outset it is pertinent to say that when an appeal is taken upon a typewritten transcript the appellant is required to print in its brief, or in a supplement appended thereto, such portions of the record as it desires to call to the attention of the appellate court. (Sec. 953c, Code Civ. Proc.) The appellant here has made no pretense of meeting the demands of the statute, but merely states that there is no evidence to show negligence on the part of the engineer, or conductor of the train, or of any other employée of the company. The respondent points out that the undisputed evidence is that at about 8:40 -P. M. of September 6, 1923, the freight train, containing forty-four cars and measuring about eighteen hundred feet in length, left the yards of the appellant in West Oakland, being pulled by a regular passenger engine; that, before it had proceeded a mile from the starting point, the engineer discovered that the steam pressure was dropping and that fire was flashing “from the firebox into the cab”; that though he knew that “something was wrong” he continued on his way for more than a mile to Ninth Avenue at a continually decreasing speed until the train stopped because the steam pressure was so low that the brakes were applied automatically and the engine could not move the cars; that the engineer thereupon detached the engine from the train, ran the engine into the roundhouse, and left the ears standing without an engine for a period óf an hour and three-quarters; that these public thoroughfares—Fifth Avenue and Ninth Avenue—were thus obstructed, shutting off all means of ingress and egress from the plant of respondent and of other industrial concerns in the vicinity; that, though the engineer, conductor, and brakeman all telephoned to the offices of appellant, no attempt was made to move the train, or to “break” it at either street crossing, until after the company was notified that a fire had broken