Ferrario v. Conyes

TYLER, P. J. Appeal from an order granting a new trial after verdict for defendants in an action for damages for personal injuries. The only ground urged upon the hearing of the motion was the claimed misconduct of counsel for defendants in his argument to the jury. The grounds urged on appeal for a reversal of the order granting the motion are: 1. the evidence was insufficient to justify a finding in favor of plaintiff had one been made; 2. there was no misconduct; 3. conceding that there was it was not sufficient to justify the granting of the motion under the facts of the case. The points urged necessitate a brief review of the facts.

The accident happened on the premises of the Western Pipe & Steel Company in South San Francisco at approximately 8:15 A. M. on December 5, 1934. Plaintiff was an employee of the last named company and was engaged in attempting to move a piece of old cable from a pile situated on the premises of his employer. Defendant R. A. Conyes was engaged in the trucking business. Defendant Jones was ' employed by him as a truck driver. J ones was engaged in handling pipe from the plant to a point somewhere south of Redwood City. On each trip Jones took one length of pipe which was sixty-six inches in diameter and sixty feet long. The conveyance used by Jones was composed of a truck and a dolly, the dolly being a two wheeled trailer attached to the rear of the truck by a cable approximately thirty feet long. On the day of the accident after the truck driven by Jones had been loaded he stopped to secure some pieces of timber used in his work. While thus engaged a small Ford pick-up truck driven by one Anderson, an employee of the Western Pipe & Steel Company, drove out of the yard. In doing so he passed plaintiff, who was bent over engaged in his work. Anderson spoke to plaintiff and then drove out upon the highway. About a minute later Jones started his truck, following the course taken by Anderson. He testified that as he drove forward he was looking ahead but saw no one in his [60]path. About three minutes after the truck driven by Jones had passed the point where Anderson had seen plaintiff working, plaintiff was found lying in the road. No one had witnessed the accident. As a result plaintiff received a compound fracture of his left leg. He also received a fracture of the base of the skull, and an injury to his brain which caused him to become irrational, which injury will probably be permanent.

There was evidence to show that no other vehicle had passed plaintiff to the time he was found except the truck driven by Jones. Other evidence was to the effect that the trailer, going around the bend where plaintiff was seen at work by Anderson, cut in as much as three or four feet, and that the character of injury plaintiff suffered would be inflicted by a wheel carrying a heavy weight such as the wheel on the trailer. Defendant Jones testified that °as he passed the place where plaintiff was working he looked straight ahead and saw no one although there were no obstacles in the road interfering with his view. Plaintiff testified that he saw defendants’ truck approaching but continued his work. It also appeared that owing to plaintiff’s mental condition his testimony was unreliable.