Cadwell v. Borough

MOORE, P. J. Appeal from an order granting plaintiffs’

motion for a new trial in an action for damages allegedly arising out of injuries suffered by defendant’s guests who were riding in her automobile. The order was based upon the grounds that the evidence was insufficient to justify the verdict and that it is against law.**

The accident occurred in Arizona in September, 1951. The road on which the motorist and her guests proceeded was winding, up-grade, 15 feet wide, of hard surface, covered with granite or coarse gravel. On the right side the decomposed granite was piled about nine inches high for some five miles prior to reaching the point at which the accident occurred. A mountain stood to the left, and on the right was “an area down below.” The vehicle was a 1949 station wagon in good mechanical condition; tires all new, steering gear in order, windshield clean. Neither fóg nor rain nor other object obscured the vision. Visibility along the way [190]was good; not a cloud in the sky; not another vehicle on the horizon. They were on the Senator Highway in the vicinity of Prescott. Mr. McLaughlin sat beside defendant who drove; Mesdames Cadwell and Bell and Mr. Roberts occupied the rear seat.

Defendant testified that as she was proceeding at a speed of 15 miles per hour, “staying to the right side of the road . . . the right front wheel went off first ... hit a soft shoulder of this gravel and the car wheels just went down and I couldn’t right the car in time to get it back on the highway . . . the weight of the car took us right over.” At the time of the fall into the ravine, the car was in an S curve. She “realized if there was a car coming down, that I needed to be over to the right and evidently stayed too far to the right . . . when my right front wheel got on the gravel portion . . . my right front wheel went down.” Mrs. Bell testified that the automobile turned over twice down a steep cliff.

The trial judge’s discretion will not be questioned on appeal unless its abuse clearly appears. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358 [170 P.2d 465]; Shellhaas v. Petrolane Ltd., 98 Cal.App.2d 171, 176 [219 P.2d 797]; Dearing v. Fessler, 94 Cal.App.2d 260, 262 [210 P.2d 535].) When the motion comes before him it is his duty to review the evidence, weigh the inferences fairly deducible from the facts and thereby determine whether the verdict was fair and just as to the paramount issue in the controversy. (Pearl v. Kaline, 82 Cal.App.2d 910, 912 [188 P.2d 58].) Even though the evidence is free of conflict, the trial judge is obliged to draw his own inferences and, from his own appraisal of the facts, determine whether the evidence was sufficient to support the judgment. (Blumenthal v. W. I. Hollingsworth & Co., 69 Cal.App.2d 337, 340 [159 P.2d 75].) And if he concludes that the jury has found contrary to the weight of the evidence, he may grant a new trial. (Gardner v. Marshall, 56 Cal.App.2d 62, 66 [132 P.2d 833].) If the order granting the new trial can be upheld upon any rational view of the evidence, it will not be disturbed. (Estate of Standing, 99 Cal.App.2d 668, 674 [222 P.2d 465, 223 P.2d 255].) The order is conclusive in the absence of a clear and affirmative order showing of gross, manifest or unmistakable abuse of discretion. (Gray v. Robinson, 33 Cal.App.2d 177, 184 [91 P.2d 194].)