Bua v. G. I. Taxi Co.

SHOEMAKER, J. This is an appeal by defendants James Harding and the G.I. Taxi Company from an order granting plaintiff Josephine Bua a new trial.

On September 28, 1956, James Harding was driving a cab in the course of his employment by the G.I. Taxi Company. On that date the respondent was working the “graveyard shift” for the San Jose Cannery. The G.I. Taxicab Company by an agreement with the cannery sent cabs out to the plant at 4:45 a.m. to transport the female workers to their homes at the conclusion of the shift. On this morning appellant Harding picked up five passengers including respondent. Respondent sat in the back seat of the cab on the right and sitting on the same seat on the left was her daughter-in-law, Antonia Bua, who resided a few doors away from her. The cab arrived in front of respondent’s house at about 5 a.m. The evidence is conflicting as to whether the cab was stopped on the wrong side of the street or not, and whether it was stopped at the curb or towards the middle of the street. Appellant Harding testified that as he drove along respondent’s street that the Buas yelled “Stop, this is where we get out” and that he then stopped the cab; that thereupon the respondent and Antonia Bua opened the doors on their respective sides and started to get out immediately; that appellant Harding did not leave the cab to assist either woman; that this was because they began to leave before he had a chance to do so. As respondent was leaving the cab, respondent and her witnesses testified, the cab moved and she was thrown to the ground and injured. Harding denies the cab moved.

The jury was fully instructed, pursuant to request of both sides, on the issue of contributory negligence. The jury returned a unanimous verdict in favor of the defendants (appellants herein). The trial court thereafter granted the respondent’s motion for new trial pursuant to Code of Civil Procedure, section 657, subdivision 7, on the ground of an error of law occurring at trial, specifically that the evidence did not warrant instructions on contributory negligence.

This appeal turns on the propriety of the trial court instructing the jury on the question of contributory negligence.

Where a new trial is granted for an error of law occurring at trial because of an instruction given, if the [615]instruction was correct and should have been given, there is no legal ground upon which a new trial may be granted. (Witkin, California Procedure, vol. 3, Appeal, § 100, p. 2270; Parker v. Womack (1951), 37 Cal.2d 116, 123 [230 P.2d 823]; Conner v. Southern Pacific Co. (1952), 38 Cal.2d 633, 637 [241 P.2d 535].)