Bayley v. Souza

KNIGHT, J. Plaintiffs appeal from an order granting a new trial as to two defendants, in an action for damages arising out of an automobile accident. The new trial was granted upon the ground of insufficiency of evidence, and the order so specified. This was the second trial of the action, and is the second appeal that has been taken therein.

The accident involved three cars. The plaintiffs, Robert and Florence Bayley, husband and wife, were the occupants of one car, and the other two were driven respectively by George A. Souza and Audrey Wheeler (now Mrs. Bates). Souza, Mrs. Bates, and Ethel Ewing, the owner of the Bates car, were joined as parties defendant. Each trial took place before a jury. The first resulted in a verdict against the defendants Bates and Ewing for $1,500, and Souza was exonerated. Plaintiffs being dissatisfied with the amount of the award and the verdict exonerating Souza from liability moved for a new trial as against all defendants; and Mrs. Bates and Mrs. Ewing moved for a new trial as to them. Both motions were granted, Souza appealed, and the order granting the new trial was affirmed, thereby setting the cause at large for re-trial as to all defendants on all issues. (Bayley v. Souza, 42 Cal.App.2d 166 [108 P.2d 725].)

The second trial was had in a department of the court presided over by a different judge, and it resulted in a verdict against the defendants Bates and Ewing for $5,000, and Souza was again absolved from liability. Mrs. Bates and Mrs. Ewing moved for a new trial as to themselves, and as stated the motion was granted upon the ground of insufficiency of evidence, which gave rise to the present appeal. In their [778]opening brief plaintiffs stated'that the appeal was directed only against the defendants Bates and Ewing; and at the time of oral argument Souza moved for and was granted a dismissal of the appeal as to him.

The accident happened about 6:30 o’clock on a Sunday evening on a main highway in Marin County known as the Black Point Cut-Off. The highway in that locality runs in a general easterly and westerly direction, and a white line divided it into two lanes, one for the east-bound traffic and the other for the west-bound. Souza was driving easterly, and the other two were in a line of cars travelling in the opposite direction. The Bates car was in the line ahead of plaintiffs; but there is a dispute as to whether it was immediately in front of plaintiffs’ car or whether a car driven by one Petroff was- in between thém. The Souza and the Bates cars collided, and the Sóuza car then struck plaintiffs; but there is a sharp conflict in the evidence as to the cause of the collision between the Souza and the Bates cars. According to some of the witnesses the Souza ear veered over the center line and struck the Bates car, and according to other witnesses the Bates car cut out of the line of the west-bound traffic and collided with Souza. The law is well settled that where there , is a substantial conflict in the evidence upon disputed issues which are material to the determination of the question of liability, the trial court may exercise its powers to set aside the verdict of a jury and order a new trial; and that under such circumstances its order will not be disturbed on appeal.