Hanson v. Weckerle

PLUMMER, J. This action is before us upon an appeal by the defendants from an order of the trial court denying his motion for judgment notwithstanding the verdict. This motion appears to have been made in the alternative in accordance with the provisions of section 629 of the Code of Civil Procedure, wherein a party to an action may move for judgment notwithstanding the verdict, and also exercise the right of moving for a new trial. In the ease at bar the trial court denied the appellant’s motion for judgment notwithstanding the verdict, but granted the appellant’s motion for a new trial. The trial court evidently was of the opinion that the testimony warranted the submitting of the cause to the jury for determination, but that the testimony did not [216]justify the verdict of the jury, as it appears in the record that the order granting the new trial was, among other grounds, based upon the insufficiency of the testimony.

The record shows the following facts:

That one Alfred G. Hanson, the husband of Stella Hanson, and the father of Karl Hanson, came tó his death by reason of being run over by a certain Ford truck driven and operated by the appellant on or about the 7th day of January, 1934.

The deceased and the appellant were employed by Gran-field, Farrar & Carlin, contracting firm, having its camp on Little Brown’s Creek near the foot of Hayfork mountain in Trinity County. About noon of the day of the accident the deceased and the defendant set out with and in a Ford truck for the purpose of conveying welding machinery from the camp to the top of the mountain. The appellant was acting as driver of the truck. There was a window in the back of the cab, but the welding machinery which was loaded on the truck obscured the view through the back window of the cab. There was no showing that either the appellant or Hanson had ever had anything to do with that particular Ford truck prior to the day mentioned. The highway from Little Brown’s Creek camp to the top of Hayfork mountain appears to have been quite steep. The truck was known as a one and one-half ton truck. The welding machinery weighed about 1500 pounds. After the truck had been driven some two or three miles in the direction of the summit of the mountain, the motor began giving trouble. At first the appellant and the deceased both dismounted and worked with the carburetor, but apparently were not able to remedy the trouble. The truck would pull for a short distance and then sputter and fail. When this occurred Hanson would jump off the truck, the appellant would stop the truck with his brakes, and after it was stopped Hanson would place a block of wood behind one of the rear wheels. The appellant would then permit the truck to settle back against the block, and then attempt to clear the engine, using the choke for that purpose. When the truck would again start forward, Hanson would run and climb into the cab to the right of the appellant. This procedure was followed for a distance approximately 800 or 1,000 feet. The road being traveled was wet.