Vicino v. Amador

California Court of Appeal Mar 9, 1925 No. Docket No. 5002.Published

Before: Sturtevant

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Holding. The trial court erred by instructing the jury on the law regarding 'closely built up districts' when there was no evidence in the record to support a finding that the accident occurred in such a district.

Issues

Whether the trial court erred in giving jury instructions regarding the operation of motor vehicles in a 'closely built up district' absent supporting evidence.
Whether the trial court's instructions improperly delegated the definition of a 'closely built up district' to the jury.

Disposition. reversed

Quotations verified verbatim against the opinion

“the evidence introduced did not justify the trial court in giving any instruction regarding the law applicable to the operation of motor vehicles in “a closely built up district.””

“there was not a particle of evidence in the record to support the finding.”

“Of course, that was not the law, and, furthermore, it was highly prejudicial to the defendant.”

STURTEVANT, J.

Plaintiff filed a complaint, the defendant filed a cross-complaint, and after issue joined on each of those pleadings the parties went to trial before the court sitting with a jury. Judgment went for the plaintiff and the defendant has appealed.

The respondents make a preliminary objection to the appeal being heard on the record which is before us. A proper understanding of that objection requires the statement of these preliminary matters: The verdict was filed February 14th, the judgment was entered February 15th, and notice of intention to move for a new trial was filed February 19th, and the trial court made an order granting a new trial on April 18th, all of said dates being in the year 1924. It will be noticed that the order granting the new trial was not made within two months after the verdict and for that reason the order was ineffective. (Code Civ. Proc., sec. 660.) The record does not disclose that a notice of entry of judgment was given, nor does it disclose that a notice was given of the order granting a new trial. On May 9, 1924, the appellant filed a notice of appeal and requested that

[607]

the evidence, etc., be transcribed. Thereafter the clerk’s transcript was prepared, the reporter’s transcript was prepared, and notice was given that the same would be presented for approval. On the day noticed written objections were presented opposing the certification of the record and said objections were supported by the records and files of the trial court. Thereafter the trial court certified the record and furthermore it certified the proceedings subsequent to the preparation of the transcript. No formal motion to dismiss this appeal has been made, but in his brief the respondent calls attention to the foregoing facts by way of objecting to a hearing in this court. The objection is without merit. The point was ruled in the case of

Revert

Hesse,

184 Cal. 295, 297 [193 Pac. 943],

The trial court gave, at the request of respondent, certain instructions and it denied or modified certain instructions requested by the defendant. The plaintiff pleaded negligence by using the same language as was before the court in

Vicino v. Amador

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STURTEVANT, J.

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