Parsell v. San Diego Consolidated Gas & Electric Co.

BARNARD, P. J. In this action for personal injuries a jury returned a verdict in favor of the plaintiffs. A judgment notwithstanding the verdict which was then entered was reversed by this court (41 Cal. App. (2d) 382 [106 Pac. (2d) 935]), on the grounds that while it was weak there was some evidence of negligence on the part of the defendant and that [214]the question of contributory negligence was one of fact rather than one of law, with the suggestion that a new trial could properly be granted. After the going down of the remittitur the defendant presented its motion for a new trial which the court, in effect, denied by not granting the same within the required time. A judgment was then entered in favor of the plaintiffs in accordance with the verdict of the jury and the defendant has appealed.

The first point raised is that a “new trial should have been granted.” The trial judge, in granting the motion for a judgment notwithstanding the verdict, must have been of the opinion that there was no evidence at all to sustain the verdict. On the former appeal, we were compelled to hold that there was some evidence of negligence, although we pointed out its weak character and suggested the propriety of granting the motion for a new trial. As has been frequently said, a trial judge, in passing upon a motion for a new trial, is in effect a thirteenth juror. It is his duty to reweigh the evidence and pass independent judgment upon it, and he should not permit a verdict to stand which he does not consider just even though there be some evidence to support it. In this ease the trial judge had recognized the inherent weakness in the evidence and it is difficult to understand how, after a reversal which confirmed that view but pointed out the proper remedy, he could have deemed the same evidence sufficient to justify the denial of a new trial. We agree with the appellant that a new trial ought to have been granted on the ground of the insufficiency of the evidence, but where questions of fact are concerned the rules governing an appellate court are not the same as those that govern a trial court. Under our system a trial judge’s decision on the facts must stand, where there is any substantial evidence to support it, regardless of whether or not we think that decision should have been otherwise. It follows that in reviewing this judgment we are limited to a consideration of errors of law and their prejudicial effect.

Appellant’s next contention is that there is no evidence of any negligence on its part. This was thoroughly considered and passed upon in the decision on the former appeal, nothing new is presented, and no further consideration is necessary.