Cortez v. Murray

BARNARD, P. J. This is an action for damages arising out of a collision between two automobiles. The accident happened about midnight on September 9, 1952, at the intersection of El Cajon Boulevard and Hamilton Street in San Diego. Hamilton runs north and south and is 40 feet wide. El Cajon runs east and west with six traffic lanes, separated by islands in the middle. The northerly of the three eastbound lanes is 24 feet wide, and the other two are 12 feet wide. At the time in question the defendant was traveling west in the southerly of the westbound lanes as she approached Hamilton. She turned left at the intersection in order to go south on Hamilton. As she proceeded south her car was struck about the center of its right side by a car driven by the plaintiff, which was traveling in the center lane of the three eastbound lanes on El Cajon.

In this action which followed, the defendant denied the allegations of the complaint and pleaded contributory negligence on the part of the plaintiff. A jury returned a unanimous verdict in favor of the defendant and judgment thereon was entered on January 27, 1955. On February 8, the plaintiff filed notice of a motion for judgment notwithstanding the verdict, or in the alternative of intention to move for a new trial. On March 21, 1955, the court signed an order “that judgment be and hereby is rendered in favor of the plaintiff and against the defendant in the sum of $3,000, notwithstanding said verdict”; and further ordering “that the said motion for new trial be and the same is hereby denied. ’ ’ On April 12, the plaintiff filed notice of appeal from the judgment “made and entered on the 27th day of January, 1955, and from the denial of the motion for a new trial made and entered on the 21st day of March, 1955.” On April 18, the defendant filed a notice of appeal from the judgment in favor of the plaintiff notwithstanding the verdict entered on March 21, 1955.

On his appeal the plaintiff contends that the evidence disclosed negligence on the part of the defendant in that she [182]did not slow up sufficiently in making her turn and failed to yield to oncoming traffic, in violation of section 551 of the Vehicle Code; that contributory negligence on his part was not proven except by inferences and suspicions; that the jury could not have weighed the testimony since it was out less than 20 minutes; that defense counsel was guilty of prejudicial misconduct in that he “tried to bring out that the plaintiff was in the Mastic Paint business”; and that the court erred in failing to grant his motion for a new trial since the evidence showed that he was free from contributory negligence, and that the defendant was guilty of negligence.