Goehring v. Rogers

NOURSE, J.

Plaintiff commenced this action against the two defendants charging them with • joint negligence in the operation of their respective automobiles, resulting in serious injuries to the plaintiff, who at the time was a passenger in the machine driven by the defendant Rogers. The cause was tried before a jury and the plaintiff had a verdict against the defendant Rogers for $13,250. - At the same time the jury rendered a verdict in favor of the other defendant, Frank Stjepovich. The defendant Rogers then moved for a new trial on all the legal grounds, including insufficiency of the evidence, and plaintiff moved for a new trial as to the defendant Stjepovich on errors of law alone. Both motions were granted. The plaintiff then' appealed from the order granting a new trial as to the defendant Rogers and the defendant Stjepovich appealed from the order granting plaintiff a new trial as to him. Both appeals were taken under the provisions of section 953a of the Code of Civil Procedure and by stipulation are presented upon the same record. At this time we will consider the appeal of the plaintiff from the order

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granting a new trial to Rogers, but will necessarily refer •to the other appeal from time to time. To avoid confusion we will refer to the parties before this court as they appeared as plaintiff and defendants in the trial.

A brief statement of the facts will suffice. The plaintiff was riding in an automobile driven by the defendant Rogers traveling in an easterly direction along Tulare Avenue in the city of Fresno at about midnight of the 30th of October, 1921. He was proceeding at a speed under thirty miles an hour. As he approached the intersection of Tulare Avenue and Chestnut Avenue he noticed the lights of a machine driven by defendant Stjepovich coming southerly on Chestnut Avenue. At the time that he first noticed these lights he was about one-eighth of a mile from the point of intersection and the Stjepovich car was about the same distance north on Chestnut Avenue. He testified that when he came to the intersection he first put on his brakes and then speeded up in order to pass the defendant. He turned off to his right as far as he could and put on his brakes. The defendant Stjepovich’s car, which was traveling on the left-hand side of the highway, struck the left rear wheel. of Rogers’ car, turning it completely over and throwing it into the field alongside of the road. There is no evidence that the defendant Rogers after he reached the intersection, slackened his speed until just about the moment when he was struck and then he was close to the southeasterly curb, the collision having taken place in the southeastern corner of the intersection.