Card v. Boms

CURTIS, J.

This is an action for damages for personal injuries sustained by the plaintiff on account of being

[202]

struck and injured by an automobile alleged to have been negligently operated by the defendant. Negligence on the part of the driver of the automobile was conceded, and the sole question for determination of the jury was whether or not the defendant was the driver of the automobile which ran into and injured the plaintiff. The jury found against the defendant and brought in a verdict of $1,025 in favor of the plaintiff. Thereupon the court, on its own motion, ordered judgment in favor of the defendant, notwithstanding the verdict. Thereafter a judgment was entered for the defendant, from which judgment plaintiff has appealed.

The right of the trial court to set aside a verdict and enter a contrary judgment is absolutely the same as its right to grant a nonsuit. (Sec. 629, Code Civ. Proc.;

Estate of Caspar,

172 Cal. 147 [155 Pac. 631];

Per era

v.

Panama-Pacific Ini. Exp. Co.,

179 Cal. 63 [175 Pac. 454] ;

Hunt

v.

United Bank Trust Co. of California, ante,

p. 108 [291 Pac. 184].) The court should, therefore, grant such a motion when, and only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.

(Estate of Caspar, supra; Perera

v.

Panama-Pacific Int. Exp. Co., supra.)

We are of the opinion that in this case the trial court was in error in determining that there was no evidence which gave substantial support to the verdict reached by the jury. The facts with reference to the manner in which the accident happened are undisputed. The plaintiff, who is an old man and who was employed as a janitor in an office building, was going home from work at, or shortly after 1 o’clock A. M. on the morning of October 13, 1925. He was pushing a handcart along Hill Street, between Third and Fourth Streets, in the city of Los Angeles, on the right-hand side of the street, very close to the curb. A lantern was hanging from the rear of the cart. Plaintiff was walking in a northerly direction. As he approached Third Street an automobile traveling in the same direction struck. him and continued on its way without stopping. At 1:30 A. M. the defendant was arrested driving north on Broadway