Roberts v. Garania

DORAN, J. This is an action for personal injuries sustained by plaintiff while crossing Pacific Coast Highway in a marked pedestrian zone where the highway abuts Malibu Pier. Plaintiff was struck by a car driven by defendant [514]Garania and owned by Lupe Gariea, which ear was originally struck in the rear by an empty semitraetor and trailer, some 40 feet in length, weighing 23,000 pounds, owned by defendants Nelson and Taylor, d.b.a. Arroyo Grande Truck Company, and driven by defendant Richard Shaffer, an employee.

A trial by jury resulted in a verdict in plaintiff’s favor of $20,000. There were motions for new trial by the Arroyo Grande Truck Company, R. L. Shaffer, and Sinforeso Garania on the grounds of excessive damages, insufficiency of evidence, errors of law, etc., which motions were heard by Judge Swain who did not preside at the trial. The minute order in reference thereto states that “Motions of defendants for a new trial is granted,” no grounds being mentioned. Plaintiff now appeals from the order granting a new trial. Sinforeso Garania and Lupe Garcia have filed a cross-appeal from the judgment.

The record discloses that Rev. Roberts and wife drove to the area for the purpose of fishing off the pier. The day was clear, the road dry. After parking in a parking lot on the east side of the street, the two persons waited for traffic to stop, and two cars approached the marked pedestrian crosswalk and stopped in the 30-foot eastermost lane. Rev. and Mrs. Roberts then proceeded to cross the highway. Plaintiff had walked ahead and past the two stopped cars and was walking in the second or 12 foot lane when Shaffer’s truck rammed into the rear of Garania’s car causing the latter to collide with plaintiff who suffered head and leg injuries.

There was a conflict of evidence as to what occurred just previous to the accident. Garania, driver of the car which hit plaintiff, testified that he had stopped next to the double white center line so that the pedestrians might cross, when Shaffer’s truck collided with the rear of the Garania car. Shaffer testified that Garania cut into the lane and slowed down quickly; that Shaffer applied the brakes but was unable to stop in time to avoid the collision.

The Roberts Appeal

Plaintiff-appellant’s contention that “It was an abuse of discretion for the Law and Motion Court to grant a new trial to defendants,” cannot be sustained. In this connection, an instruction to the jury that “The issues to be determined by you . . . are; First, was the defendant negligent? ... If you answer that question in the negative, you will return a