Colin v. Milosevich

KINGSLEY, J. The present controversy arose out of a two-car head-on automobile collision which occurred on Sunday, January 24, 1960, at about 12:30 a.m. The locale of this unfortunate event was Balboa Boulevard near its intersection with Plummer Avenue in the San Fernando Valley in the City of Los Angeles.

Joel I. Colin, the driver of one of the automobiles, and Alice A. McKee, a passenger in the other automobile involved in the collision, brought suit against defendant, an independent sewer contractor, who had been engaged in constructing an interceptor sewer along Balboa Boulevard in the accident area, pursuant to a contract with the City of Los Angeles. Both plaintiffs characterized defendant’s liability in terms of having negligently placed and maintained dangerously deceiving, defective, misleading, and improperly equipped barricades and traffic control devices, so as to cause the automobile driven by Colin to collide head-on with the automobile in which McKee was a passenger.

Due to the identical facts pertaining to the accident and identical issue of defendant’s liability, the two causes were consolidated for pretrial and trial purposes. After a trial by jury, a verdict was returned for defendant, and against both plaintiffs Colin and McKee. Colin filed a motion for a new trial which was denied and he appeals from the resulting judgment. Plaintiff McKee filed a motion for a new trial, which was granted on the ground of insufficiency of the evidence to justify the verdict. Defendant appeals from the order granting a new trial for plaintiff McKee. Both appeals have been consolidated in this court.

Although numerous contentions have been raised on appeal, a discussion of only two is necessary for a proper disposition of these causes: First, the propriety of the court’s ruling in granting a new trial to plaintiff McKee, and secondly, the correctness of the court’s denial of a new trial to plaintiff Colin.

[457]I

On appeal from an order granting a new trial, the presumption is in favor of the order and against the judgment. (Tice v. Kaiser Co. (1951) 102 Cal.App.2d 44 [226 P.2d 624].) Furthermore, where there is a conflict of evidence upon material issues, and there is evidence which would have sustained a judgment in favor of the moving party, an order granting a motion for a new trial upon the ground of insufficiency of evidence to sustain the judgment will not be disturbed on appeal. (Commander Oil Co., Ltd. v. Bardeen (1941) 48 Cal.App.2d 345 [119 P.2d 969].)