Mytinger v. Weir

WARD, J. This is an action to recover damages for personal injuries received in an automobile accident. The appeal is by defendants Mrs. W. B. Weir and her chauffeur Leon Darras from an order granting plaintiff’s motion for a new trial following a jury verdict in their favor. The motion was granted upon the ground of the insufficiency of the evidence to sustain the verdict, the court specifically finding that “The evidence is insufficient to justify or warrant the jury’s implied finding that the plaintiff was guilty of contributory negligence. ’ ’

Plaintiff, accompanied by guests, was driving her station wagon north on the highway known as “The Alameda” in San Mateo County. Defendant Darras, operating his employer’s car, was driving west on Stockbridge Avenue which intersects the said highway at approximately a right angle. A third car, driven by a Mr. Peterson, along The Alameda [700]was approaching the intersection from the north. A collision at the intersection between plaintiff’s car and that being driven by Darras threw the former across the highway sideways where it came into contact with the front end of the Peterson car. Peterson was named as a defendant in the action, but the case was dismissed as to him before the end of the trial.

Under the specification contained in the order granting a new trial, the only question necessary to consider on appeal is whether the evidence shows that plaintiff was guilty of contributory negligence as a matter of law, and whether there was thus an abuse of discretion by the trial court in granting the motion upon the specified grounds. (Hall v. Desser, 8 Cal. (2d) 29 [63 Pac. (2d) 809].) Some of the citations relied upon by appellants would be applicable were the purpose of this review to ascertain whether there was any evidence to sustain the verdict, but on an appeal from an order granting a new trial the test is whether there is a conflict upon a material issue. If so, the action of the trial court is conclusive on appeal. (Bonner v. Los Angeles Examiner, 17 Cal. App. (2d) 458 [62 Pac. (2d) 427] ; Gallardo v. Luke, 33 Cal. App. (2d) 230 [91 Pac. (2d) 211].)

The main question raised by appellants is as follows: “Is it contributory negligence as a matter of law for a motorist to drive across an obstructed intersection without taking any observation of traffic coming from the right and with a vehicle thus coming from the right possessing the right of way, at a rate of speed in violation of the Motor Vehicle Code and in deliberate avoidance of any observation of such traffic until both machines are in the intersection, and a few feet apartV’ If such facts appear undisputed in the record, at least collectively, an affirmative answer must be given.