Brattain v. Pacific Electric Railway Co.

VALLÉE, J. Appeal by plaintiffs, husband and wife, from an order granting defendant’s motion for a new trial in an action for damages for personal injuries and injury to property allegedly caused by the negligence of defendant in operating one of its interurban cars. Defendant denied negligence and affirmatively alleged that plaintiffs were contributively negligent. The trial was by jury; verdict and judgment were for plaintiffs.

The court granted the motion upon the grounds: 1. Insufficiency of the evidence. 2. Misconduct of the jury (one juror having visited and viewed the scene of the accident during the trial) by which defendant was prevented from having a fair trial. 3. The verdict was against law.

The accident, a collision between plaintiffs’ automobile and defendant’s streetcar, occurred on November 24, 1945, on Sepulveda Boulevard where it crosses defendant’s right of way north of Exposition Boulevard. Sepulveda is a four-lane highway, with a gravel shoulder on each side, and at the point of the accident extends in a northerly-southerly direction. Defendant’s right of way is approximately 100 feet in width on which is located one set of railroad tracks. Between Pico and Exposition, both of which run in an easterly-westerly direction, Sepulveda curves slightly, but where it crosses defendant’s right of way it runs a straight course for a distance of about 156 feet north of the track. On the west side of Sepulveda just north of the track there was a wigwag signal atop a striped pole, and a similar signal on the east side just south of the railroad track. The photographs introduced in evidence show there was nothing on the east side of Sepulveda to obstruct the view of the approach of defendant’s westbound streetcars. The weather was clear. It was just getting dark. It appears without conflict that immediately preceding and at the time of the collision the wigwags were ringing, the lights of defendant’s streetcar were on, the [680]motorman blew a series of whistles and clanged his bell as he approached and crossed Sepulveda.

Plaintiffs, with their two sons, were traveling south on Sepulveda, in the lane of traffic immediately adjacent to the center line of the street, at a speed of between 25 and 30 miles an hour. Defendant’s streetcar was westbound, going about 15 to 20 miles an hour. It had crossed the easterly half of Sepulveda when the accident occurred.

The rules which govern a reviewing court in the determination of an appeal from an order granting a new trial are so well known they need not be repeated. The Supreme Court has recently said that the order of the trial court will be reversed only when it can be said as a matter of law that there is no substantial evidence to support a contrary judgment. (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307 [163 P.2d 689].)