Furze v. Wright

STURTEVANT, J. The plaintiff and the defendant while driving their automobiles met with a collision at the intersection of California Street and Alcatraz Avenue in Berkeley. For injuries sustained in the accident the plaintiff commenced this action. The jury returned a verdict in favor of the defendant. The plaintiff made a motion for a new trial but his motion was denied. From the judgment entered in favor of the defendant the plaintiff appealed and has brought up a bill of exceptions.

The plaintiff contends that the trial court abused its discretion in denying the plaintiff’s motion for a new trial upon the ground of newly discovered evidence. This contention he divides into several different arguments. The defendant replies that the ruling of the trial court may not be disturbed on appeal except that the trial court did abuse its discretion and that an abuse of discretion is never pre[411]sumed but must be shown by the record. (Wilder v. Wilder, 214 Cal. 783, 785 [7 Pac. (2d) 1032]; Olson v. Ranker, 93 Cal. App. 124, 126 [269 Pac. 175].) Continuing the defendant claims the trial court did not abuse its discretion for several different reasons which he proceeds to set forth. If any one of those several reasons is sound the order must be affirmed and it is not necessary that every reason assigned by the defendant should be discussed.

The first reason assigned by the defendant is that the order was properly denied because the plaintiff did not make a sufficient showing that he had used reasonable diligence to discover the evidence which, on his motion for a new trial, he claimed to be newly discovered evidence. An understanding of that point requires a brief statement of facts.

The accident occurred on the sixth day of January, 1934, •at about 11:20 A. M. The complaint was filed February 16th, a little over one month thereafter. On the 17th of May the trial commenced in the city of Oakland and continued during the three days following. The record discloses that the intersection in which the accident occurred is located in closely built up territory. On the southwest corner of the intersection stands a building that is occupied in part as a bakery. A glass door is set in diagonally at the street corner. There are windows on the side adjacent to Alcatraz Avenue. The bakery is conducted by the Kulik family. On the trial the plaintiff called as witnesses Herman Kulik, Henry Corke, H. C. Spite and Henry Rogers. Each lived in the immediate neighborhood and, excepting Herman Kulik, went to the scene immediately after the accident happened. Herman Kulik testified that at the time of the accident he was on the sidewalk outside of the bakery with his back turned to the street washing the window of the bakery. He did not see the cars until he heard the crash and then looked around. In the very nature of his work Kulik was looking through the glass and into the bakery. No witness was asked to name any person that he saw at the scene of the accident. Kulik was not asked to name who was in the bakery as he stood looking through the windows. No deposition of any witness or party was taken but both the plaintiff and the defendant relied on the examinations made and the reports received from their respective investigators.