Butler v. Miller

CABANISS, P. J.,

pro tem.

Plaintiff sued to recover for personal injuries suffered as the result of having been struck and run upon by an automobile truck driven by defendant Schneider, as the employee of defendant Miller. The verdict was in favor of defendant Schneider and against defendant Miller.

Defendant Miller moved for and was granted a new trial “on the ground of the insufficiency of the evidence to justify the verdict and upon the further ground that the verdict is against law”; and from this order plaintiff has appealed.

It has been repeatedly held by our courts that an order granting a motion for a new trial must stand except it plainly appear that in making such order the trial court abused its sound discretion

(Bledsoe

v.

DeCrow,

132 Cal. 312 [64 Pac. 397],

Wright

v.

Yosemite Transp. Co.,

28 Cal. App. 279 [152 Pac. 54], and cases cited therein). The concrete test to be applied here is this: “We may not disturb such an order (one granting a new trial) where there was at the trial a conflict of evidence upon material issues, unless we can say that a verdict in favor of the moving party would not have found sufficient legal support in the evidence.”

(Tweedale

v.

Barnett,

172 Cal. 275 [156 Pac. 483].)

We are of the opinion that, had the verdict been in favor of defendant Miller “it would have found legal sup

[588]

port in the evidence, ’ ’ tending strongly as it does, to show that plaintiff’s negligence contributed directly to the accident.

We will summarize the evidence only to the extent of illustrating this statement. Schneider, admittedly as the servant of Miller, entered an autotruck parked on the northerly side of Hopkins Street approximately parallel with the curb line, and slowly backed the truck diagonally toward street center. Plaintiff, having alighted from a street-car at the corner of Thirty-eighth Avenue and Hopkins 'Street, walked slowly therefrom in a diagonal course toward the north curb of Plopkins Street. While so walking he was struck by the rear of the backward-moving truck. Mrs. Prances B. Mathews, a witness for the plaintiff, saw plaintiff crossing from Thirty-eighth Avenue to north side of Hopkins Street. She testified: “He was crossing Hopkins Street and the automobile truck was backing up. When I first saw him he was a few feet north of the south curb on Hopkins Street. At the time I first saw Mr. Butler in that position the truck was moving and backing up on the north side of Hopkins Street. I watched Mr. Butler as he crossed the street, and as Mr. Butler was crossing the street the truck continued to back. There was nothing between Mr. Butler and the truck, and as I saw this truck backing and Mr. Butler walking I was thinking there would be an accident, notwithstanding the fact that there was nothing between Mr. Butler and the truck. I knew he was going to get hurt.” (In fairness to plaintiff and with all deference to the lady witness what she “was thinking” and “knew” we will ignore.) Another of plaintiff’s witnesses, the conductor of the car from which plaintiff had alighted, testified: “He (plaintiff) walked with his head down, he kind of stooped, and as I was looking at him he walked back of this truck which was moving. He did not move his head either to the left or right. I was looking right at him. The truck could not have been going over three or four miles an hour. Mr. Butler did not look one way or the other while I was watching him. There was no obstruction between the truck and Mr. Butler as the truck was moving and Mr. Butler was walking.”