Reyes v. Gonzales

BARNARD, P. J. This is an action for damages for injuries sustained by the plaintiff in a collision between an au[267]tomobile driven by her brother, and a truck belonging to the corporate defendant and driven by the defendant Gonzales.

The collision occurred at 10:15 a. m. at the intersection of “E” Street and Biola Avenue, in Biola, Fresno County. Biola Avenue is the main north and south highway and has a black top surface about 18 feet wide. “E” Street, running east and west, is somewhat narrower. On this occasion the truck was proceeding south on Biola Avenue and the automobile was proceeding west on “E” Street. The vehicles collided at a point three feet north and two feet west of the center of the intersection. There was a vacant lot at the northeast corner of the intersection, so that each driver had an unobstructed view of the other vehicle as it approached the intersection. There was a house at the southeast corner which would obstruct the view to the south for a driver approaching from the east. There was a school ground on the northwest corner with hedges and trees which, while not obstructing the view, would make it more difficult for a driver coming south to observe traffic approaching from his right.

A jury returned a verdict in favor of the defendants, and they have appealed from an order granting the plaintiff’s motion for a new trial based in part upon the insufficiency of the evidence to sustain or justify the verdict.

The appellants concede that the rule is well established that such an order will not be reversed unless it appears, as a matter of law, that there was no substantial evidence which would support a judgment for the moving party, or that the granting of the motion clearly constitutes an abuse of discretion on the part of the trial court. (Martin v. Smith, 103 Cal.App.2d 894 [230 P.2d 679].) They contend that the sole proximate cause of this accident was the negligence of the driver of the automobile in which the respondent was riding; that there was no evidence of any negligence on the part of the truck driver; that there was no substantial evidence that would support a judgment in favor of the respondent ; and that an abuse of discretion clearly appears.

The driver of the automobile in which the respondent was riding testified, among other things, that he was driving 10 miles an hour as he approached this intersection, and that he intended to turn south on Biola Avenue; that he first looked to his right when he was 10 to 15 feet away; that the truck was traveling 25 to 30 miles an hour; that he thought he could make his turn; and that he “didn’t pay