Smith v. Ward Transportation Co.

KINCAID, J. pro tern.—Plaintiffs, husband and wife, instituted this action to recover damages for personal injuries sustained by them on August 12, 1944, as a result of a collision occurring between an automobile driven by her and a truck owned and operated by defendant partnership and driven by their employee, defendant Liles. Following a verdict and judgment in favor of defendants a new trial was granted [214]upon the grounds of insufficiency of the evidence to sustain the verdict and misconduct of counsel for defendants prejudicial to plaintiffs which prevented them from having a fair trial. The appeal is taken from that order.

The accident occurred on Firestone Boulevard (Alternate U. S. Highway 101) at a point about 800 feet east of Center Street in Los Angeles County, at about 11:30 p. m. ' The weather and visibility were good and the highway dry. At the place of collision the highway was divided into three lanes, marked with white lines, each lane being some 12 feet in width. The plaintiffs’ car had entered the highway at Center Street, turning right and proceeding in an easterly direction to the point of impact. The defendants’ truck, with a trailer attached, was loaded with approximately 14 tons of loose oranges and was proceeding in a westerly direction.

The evidence is sharply conflicting as to the point of impact and whether the automobile and truck left their respective right-hand lanes to progress into or over the center lane, thus causing the collision.

“An order granting a new trial upon the ground of the insufficiency of the evidence to sustain the judgment will not be disturbed upon appeal, unless there be a clear showing of abuse of discretion. ‘All presumptions are in favor of the order and it will be affirmed if it is sustainable on any ground. (Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169 [153 P.2d 338], and cases cited.) The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party. ’ (Ballard v. Pacific Greyhound Lines, ante, p. 357 [170 P.2d 465].) Even if the evidence is uncontradicted, the trial judge may draw inferences from it contrary to those made by the jury, and it is his duty to resolve such conflicts in determining whether the issues should be retried. Only when, as a matter of law, there is no substantial evidence to support a contrary judgment, may an appellate court reverse . an order granting a new trial. (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 [163 P.2d 689]; Mazzotta v. Los Angeles Ry. Corp., supra.) ” (Williams v. Field Transportation Co., 28 Cal.2d 696, 698 [171 P.2d 722]; see Imperial-Yuma etc. Credit Assn. v. Shields, 74 Cal.App.2d 932 [169 P.2d 671]; Hunt v. Pacific Electric Ry. Co., 51 Cal.App.2d 11 [124 P.2d 89].)