Read v. Pacific Electric Ry. Co.

[521]

SHAW, J.

This is an action by the executrix of the estate of George Gilbert Bead, deceased, to recover damages on account of his death, which, so it is alleged, was caused by the negligence of the defendant. The cause was tried by a jury and a verdict was given in favor of the plaintiff, upon which judgment was duly entered. Thereupon, on motion of the defendant, the court ordered a new trial. The plaintiff appeals from the order granting said motion. The notice of intention to move for a new trial stated, among other things, that it would be made upon the ground that the evidence was insufficient to justify the verdict; that the verdict was against law, and that errors were made by the court in its rulings at the trial. The order granting a new trial was general in terms. It was made in December, 1919, and it did not specify any particular ground as the basis upon which it was made.

The last clause of section 657 of the Code of Civil Procedure as amended in 1919, which took effect on July 22, 1919, provides that, “When a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground.” (Stats. 1919, p. 142.)

[1]

Because of this provision, the rule stated in

Kauffman

v.

Maier,

94 Cal. 277, [29 Pac. 481], and other cases following it, applies, and we are precluded from considering whether or not the evidence is sufficient to sustain the verdict, unless it is insufficient in law and without conflict on any material point. Under the doctrine of that case, however, if we find any other ground upon which the motion might have been granted, the order should be affirmed. »

It appears that the court gave the jury an instruction upon what is known as the doctrine of “the last clear chance. ’ ’

[2]

The substance of the doctrine as applied to such cases is that although it appears that the contributory negligence of the decedent was one of the proximate causes of his death, yet if the defendant’s agents having charge of the instrumentality which caused the death perceived that the decedent, by his own negligence, had placed himself in a position of peril from which he probably could not escape, and after perceiving his perilous position failed to exercise ordinary care and prudence to avoid injuring the decedent