Lezzeni v. Cox

WARNE, J. pro tem.* Defendant appeals from an order granting a new trial to plaintiff in a personal injury ease tried to a jury which returned a verdict for the defendant. The plaintiff has appealed from the judgment pursuant to rule 3(a), Rules on Appeal.

The ease arises out of a collision between a Chevrolet station wagon being driven by plaintiff and a Ford pickup being driven by defendant. The accident happened in the town of Burney, Shasta County, California, at the intersection of Highway 299 and a county road known as Garden Lane. The highway, for a considerable distance each way from the scene of the accident, is straight and level and divided by a broken white line. Both vehicles were in a line of westbound traffic with plaintiff near the front of the line. It is admitted that the two vehicles collided as plaintiff was attempting a left turn onto Garden Lane and the defendant was attempting to pass him. The evidence shows that the plaintiff turned on his blinker lights at least 500 feet from the intersection, indicating an intention to turn left, and also decreased his speed. Plaintiff testified that his speed at the time he reached the intersection and started the turn was “maybe” 10 miles an hour. The driver of a car following immediately to the rear of plaintiff’s vehicle estimated plaintiff’s speed to be about 15 miles an hour at the time he made the turn. The point of impact, was approximately at the center of the eastbound lane. Defendant testified that he passed two cars to the rear of the station wagon and that he did not see the blinker signal on plaintiff’s station wagon indicating a left turn until he turned into the left lane. He estimated his speed at approximately 40 miles [397]an hour. Plaintiff testified that when he was 40 feet from the intersection he looked into his rear-view mirror, had a clear view, and at that time he saw no car in the left lane.

In his complaint plaintiff alleged that defendant was negligent in the driving of his Ford pickup. Defendant denied negligence and affirmatively alleged that plaintiff was contributorily negligent. Katherine Lezzeni, wife of Andrew Lezzeni, was originally also a plaintiff, but later, at plaintiffs’ request, was dismissed as a party to the action. The pretrial order specified that the issues were negligence and contributory negligence.

On February 25, 1960, the trial court made an order granting plaintiff’s and intervener’s motions for new trial, as follows: “For the sole reason, therefore, that the verdict in favor of the defendant is not supported by the evidence, the Motions for a New Trial are granted.” And on March 7,1960, by a supplemental ruling the order was amended to read as follows: “For the sole reason, therefore, that the verdict in favor of the defendant is not supported by the evidence as a matter of law, the Motions for a New Trial are granted. (The instruction on contributory evidence [sic] should not have been given and it was error to do so.) ”