McIntee v. Ammerman

CONREY, P. J. This is an action brought by the widow and minor son of one Bert J. McIntee against defendant Ammerman and other defendants to recover damages for the death of said Bert J. McIntee, caused by the negligence of the defendant Ammerman in the operation of an automobile. The case was tried before a jury, which returned a verdict in favor of the defendants. Plaintiffs moved for a new trial, and the court granted the motion as to defendant Ammerman, upon the ground that the evidence was insufficient to justify the verdict. Defendant Ammerman appeals from the order granting the motion for a new trial.

The grounds of appeal as stated by appellant are: that there was nncontradieted testimony without any conflict whatever which entitled appellant to the verdict which the [318]jury rendered in his favor; and that the trial court abused its discretion in granting the motion. At the time of the accident the deceased Bert J. Mclntee was a passenger in the automobile driven by Ammerman. The accident occurred on the 2'lst of June, 1929, at about 8 o’clock in the evening. The automobile was driven with great force into a trailer at the rear, of a truck parked at the right side of that part of the highway then in use for traffic purposes. The facts are not such as to require an extended statement of the case, or a new exposition of the well-settled law applicable thereto. There was evidence directly tending to prove negligence on the part of appellant, which would have justified a verdict affirming his liability to the plaintiffs. We are satisfied that the court did not commit any abuse of discretion in granting, as to appellant, the motion for amew trial.

The order is affirmed.

Houser, J., and York, J., concurred.