Hammer v. Crehan

BARTLETT, J. pro tem. This is an action for personal injuries received as a result of a collision between a motorcycle on which respondent was riding and a ear driven by appellant. At the conclusion of the trial, the court granted a motion for a new trial on the ground, among others, that the verdict and judgment in favor of appellant were not supported by the evidence.

At- 7:30 p.m. on December 15, 1945, respondent was a passenger on a motorcycle driven by Mr. Perkins, traveling on Vermont Avenue between Sixth and Fourth Streets in the city of Los Angeles. The motorcycle was in a lane near the ear tracks and was going at about 20 to 25 miles per hour. Just before the accident a car driven by Mr. Jacobson, was a short distance ahead and slightly to the right. Behind the motorcycle was a car driven by Mr. Towvim. Both of these cars were traveling at about the same speed as the motorcycle. While these cars were thus proceeding north, the appellant pulled out of a private driveway connected with a service station to make a left turn on Vermont Avenue in front of these cars. Seeing her, Mr. Jacobson puj; on his brakes, swerved to the right 8 or 10 feet, and came to a sudden stop just missing appellant’s car. The driver of the motorcycle applied his brakes but could not stop in time, and as Mr. Jacobson’s car swerved to the right, struck the rear fender of the appellant’s car. Mr. Towvim who was 5 or 6 car lengths behind the motorcycle, applied his brakes and pulled over to the curb. Respondent was thrown from the motorcycle against Mr. Jacobson’s car and received the injuries of which he complains.

Appellant’s contention, as stated in her brief, is as follows: “The court erred in granting a motion for a new trial where there was no substantial conflict in the testimony on material issues. The entire record clearly indicates that the defendant was not guilty of any negligence which in any manner contributed to the happening of the accident, resulting in injury to the plaintiff.” She cites many cases, upholding the familiar rule stated in that portion of the decision in Moss v. Stubbs, 111 Cal.App. 359 [295 P. 572, 296 P. 86], which she quotes as follows:

[125]“. . . it is equally well settled that where there is no substantial conflict in the testimony on material issues, and the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party, an order granting a new trial cannot be sustained.”