Pope v. Wenisch

SPENCE, J.

Plaintiffs brought an action against defendant for damages resulting from an automobile collision. After a judgment in favor of defendant on a trial by jury, a new trial was granted. The defendant appeals from the order granting the new trial.

The order read “Motion for new trial granted.” It will, therefore, be presumed that it was not based upon the ground of the insufficiency of the evidence. (Code Civ. Proc., sec. 657.) In support of the trial court’s order granting the new trial respondents rely upon error in the instructions to the jury.

[610]

Appellant’s first contention is that the new trial should not have been granted as there was no evidence to support a verdict for plaintiffs. We cannot agree with appellant in this regard. The accident happened in March, 1928, in a circle at the intersection of five streets in San Francisco. This circle has a radius of eighty feet and traffic from Tar aval Street, Montalvo Avenue, Dewey Boulevard, Kensington Way and Claremont Boulevard enter upon it. Plaintiffs entered from Taraval Street and were proceeding in a general easterly direction almost directly across the circle to Kensington Way. Defendant entered from Dewey Boulevard proceeding .in a general southwesterly direction with the intention of proceeding around the post in the center of the circle and then south on Claremont Boulevard. The machines collided near the center of the circle, the front of defendant’s Chevrolet striking the left rear portion of plaintiffs’ Studebaker. The record presents the usual conflict of evidence which ordinarily appears when witnesses attempt to describe the events surrounding the collision of moving vehicles at an intersection. The testimony relating to the speed of the machines and to their relative positions as they entered and traversed the intersection was in sharp conflict. It will serve no useful purpose to review the testimony in detail. It was plaintiffs’ theory that they had first entered the intersection on defendant’s right at a lawful speed; that they were entitled to the right of way and entitled to assume that the defendant would yield the right of way; that after observing the approach of defendant, plaintiff had directed his attention to traffic coming in on his right from Claremont Boulevard; that defendant had approached the intersection at a high rate of speed, had failed to reduce his speed or to yield the right of way and had attempted to turn his machine in the intersection without first seeing that this movement could be made in safety. It was defendant’s theory that he had first entered the intersection at a lawful speed; that he had slowed down to permit plaintiffs to pass; that plaintiffs were traveling at a high rate of speed and that the collision occurred when his machine was practically at a standstill. Under the evidence it is our opinion that a close case was presented to the jury for their determination and that there