Hack v. Gridley

ALLEN, J. pro tem. This is an appeal from an order granting a new trial on the ground of the insufficiency of the evidence to justify the verdict.

The action arose out of a rear collision between a Dodge pick-up automobile belonging to plaintiff and driven by her, [228]and a GMG semi-truck and trailer owned by defendant Gridley and driven by his employee, defendant Edgar (Ted) Hepworth. The accident took place on Highway 99 W about 2y2 miles south of the town of Orland in Glenn County about 7 a. m. May 20, 1940. At that time both vehicles were proceeding south on the highway. Plaintiff’s vehicle was ahead of defendant’s and was traveling at about 20 miles per hour. The GMG truck and trailer was traveling at the rate of about 45 miles per hour. Defendant was overtaking plaintiff and when about one hundred feet behind her, defendant veered to the left to prepare to pass the plaintiff. Plaintiff was approaching a private driveway which was located on the east side of the highway to her left and at this point the GMG semi-truck and trailer struck the rear end of the pick-up, causing the injury that resulted in this action.

There is no dispute in regard to the above facts. The jury found for the defendants apparently on the issue of contributory negligence. On motion of plaintiff a new trial was granted on the ground of insufficiency of the evidence. The main questions are:

1. Whether or not plaintiff failed to give a signal when she was about to make a left-hand turn. If she did fail, she was guilty of contributory negligence.

2. Was there other evidence of contributory negligence on her part?

3. Does the evidence sufficiently show defendant guilty of any negligence?

It is a salutary rule in this state, supported by a long line of decisions, that the order of a trial court granting a new trial will not be disturbed on appeal upon the ground of insufficiency of the evidence, in the absence of such a clear showing of abuse of discretion or prejudice as would interfere with a fair and impartial balance of the evidence. (Kehlor v. Satterlee, 37 Cal. App. (2d) 116 [98 P. (2d) 759] ; Shortt v. Los Angeles Gas & Electric Corp., 30 Cal. App. (2d) 511 [86 P. (2d) 854]; Kelley v. Corcoran, 16 Cal. App. (2d) 593 [61 P. (2d) 344].)

In the case last cited the defendant appealed from an order granting a new trial on the ground of insufficiency of the evidence to sustain the verdict and judgment. On appeal the order was sustained. The circumstances were similar to those in the present case, except that the plaintiff in the Kelley case attempted to pass the defendant’s ear as it was driven