Sanders v. Toberman

California Supreme Court Sep 12, 1923 No. L. A. No. 6986.Published

Before: Wilbur

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Holding. The court held that a notice of motion for a new trial based on insufficiency of the evidence need not specify the particulars of such insufficiency under the amended Code of Civil Procedure, and that the question of a child's contributory negligence is a question of fact for the jury.

Issues

Whether a notice of motion for a new trial must specify the particulars of the insufficiency of the evidence under the 1915 amendment to section 659 of the Code of Civil Procedure.
Whether a child of eight years was guilty of contributory negligence as a matter of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was unnecessary to specify in detail the respects in which it was claimed that the evidence was insufficient to justify the verdict.”

“The question as to whether or not a child of eight years was guilty of negligence is ordinarily a question of fact to be determined by the jury”

WILBUR, C. J.

This is an appeal from an order granting a new trial after a verdict of the jury in favor of the defendant in a ease brought by the plaintiff to recover for the death of an infant son who was killed by an automobile operated by the defendant.

The appellant presents two contentions,—first, that the notice of intention to move for a new trial is defective because there are no specifications of the insufficiency of the evidence, and, second, that the evidence shows without conflict and as a matter of law that the child, Milo Wright Sanders, killed by the defendant’s automobile, was guilty of contributory negligence.

Before the amendment of 1915 to section 659 of the Code of Civil Procedure it was required by that section that when a motion for a new trial was made upon the minutes of the court and the ground of the motion is the insufficiency of the evidence to justify the verdict or other decision, a notice of motion must specify the particulars in which the evidence is alleged to be insufficient. This provision was eliminated by the amendment of section 659 in 1915 (Stats. 1915, p. 201). The section now requires the moving party to designate the grounds upon which the motion will be made. The notice of motion in the case at bar was as follows: “Take notice that plaintiff, Allen Sanders, intends to move the court to vacate, and set aside the verdict ren

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dered in the above cause, and to grant a new trial of said cause, upon the following grounds, to wit: I. Insufficiency of the evidence to justify the verdict. Said motion will be made upon the minutes of the court in. said cause. ’’ This was a sufficient statement of the grounds of the motion for a new trial. It was unnecessary to specify in detail the respects in which it was claimed that the evidence was insufficient to justify the verdict.

Appellant cites in support of his proposition that the amendment of 1915 did not abolish the requirement for specifications of the insufficiency of the evidence

(Millar

Millar,

175 Cal. 797 [Ann. Cas. 1918E, 184, L. R. A. 1918B, 415, 167 Pac. 394], and

Sanders v. Toberman

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WILBUR, C. J.

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